1 The Honorable Joan N. Ericksen, United St ates District Judge for the District of Minnesota, sitting by designation.

2 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-3544

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Lorena Cervantes, *
* Appellant. *

___________ Submitted: June 14, 2011 Filed: July 22, 2011

___________ Before BYE and MELLOY, Circuit Judges, and ERICKSEN, 1 District Judge.

___________ BYE, Circuit Judge. A jury found Lorena Cervantes guilty of conspiracy to manufacture more than 1000 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court 2sentenced her to 120 months in prison and five years of supervised release. Cervantes appeals her convicti on contending there was insufficient evidence to sustain the jury's guilty verdict, the district court erred by ruling a co-defendant-2- waived his Fifth Amendment right agains t self-incrimination by pleading guilty, and she was denied the right to confr ontation under Crawford v. Washington , 541 U.S. 36 (2004), when the district court admitted as substantive evidence statements a second co-defendant made during his plea hearing. We affirm.

I

Lorena Cervantes, a construction co mpany owner in Rockford, Illinois, purchased a tract of real estate property in Izard County, Arkansas, on January 3, 2008. On April 8, 2008, an Arkansas Ga me and Fish officer making an aerial inspection to search for instances of ille gal turkey baiting observed suspicious rows of dirt mounds on the property. The mounds appeared to be planted. The officer also observed irrigation hosing on the property. He photographed the area and noted the GPS location. On July 31, 2008, the officervisited the property to investigate what he had observed by air months earlier. A day later, two officers returned to the property where they discovered three areas of marijuana growth and plastic cups of marijuana seedlings, along with various cu ltivating equipment. In addition, the officers found a tool shed, well head, and hoses between the marijuana patches and well.

On August 3, 2008, the officers establis hed a surveillance point approximately 125-150 yards away from the shed area. From the surveillance point, the officers witnessed two Hispanic males speaking Span ish near the shed. The next day, the officers conducted a flyover again taking aerial photos of the property. The flyover revealed a man and pickup truck on the prope rty. After the flyover, the officers drove by the property near the shedwhere they observed two additional pickup trucks and a Hispanic female, later determined to be Cervantes. As the day went on, the officers observed Cervantes and three males near the shed.-3- On August 5, 2008, at the surveillance point, the officers witnessed four Hispanic males and Cervantes awaken from the shed and walk about the shed area. The officers observed Cervantes go to and fro m the well area, as well as walk up a dirt path with two men toward the marijuana patches. Shortly thereafter, officers witnessed Cervantes leave the property in a pickup truck with three Hispanic males, and return with four Hispanic males. When Cervantes left the property once again with three men, law enforcement stopped th e vehicle. Cervantes, Jose Rincon (also known as David Ramirez), Jesus Murillo, a nd Reveriano Madrigal were arrested. Officers executed a search warrant on the property during which Luis Rincon and Heriberto Chavez Jimenez fled into the woods. Luis Rincon and Chavez Jimenez were apprehended two days later.

After the arrests, the search revealed a total of fourmarijuana growth patches that each included multiple seedlings, matureplants, and dried stalks of previously harvested mature plants, as well as tools, hoses, and other evidence of cultivation. Investigation of the shed area reveal ed personal items, cultivation equipment, fertilizer, as well as a generator and various documents. Among the documents recovered were receipts for the shed, hosi ng, irrigation equipm ent, and cultivation tools. Additionally, a real estate contr act documenting Cervantes as the purchaser of the property and receipts for th e well and pump were recovered.

Cervantes and five other i ndividuals were charged withone count of conspiracy to manufacture more than 1000 marijuana pl ants. An interview with Cervantes revealed that on April 4, 2008, Cervantes, along with her brother, Jesus Murillo, and cousin, Reveriano Madrigal, traveled to the property to collect rent and provide electricity. The property was leased to co-defendant Jose Rincon, whom she knew only as David Ramirez, on April 15, 2008. At her trial, Cervantes testified she barely3 A photograph from Jose Rincon's wallet wa s used to impeach Cervantes during her cross-examination. The photo wa s dated December 11, 2005, and depicted Cervantes and Rincon together. The photo had a note from Cervantes on the back stating: "For my punky squirrel that loves you very much. Love you forever. Hugs and kisses, hugs and kisses."
-4- knew Jose Rincon and rarely saw him, yet he was her boyfriend. 3 Cervantes also testified she planned to use the property for camping and ranching, and purchased a storage shed for the property.

Cervantes testified she had no knowledge marijuana was being grown on her property at the time of her arrest, and sh e had never herself grown marijuana there. Additionally, she testified she stayed onl y around the area of the shed when on the property and she had only wa lked the full property once when she purchased it. Several officers testified Cervantes was not physically s een engaging in activities near the marijuana patches. Co -defendants Heriberto Chavez Jimenez, Jose Rincon, and Luis Rincon pleaded guilty.

At trial, the government intended to call Jose Rincon to testify against Cervantes. Counsel for Jose Rincon appeared and stated that if called to testify, Jose Rincon would assert his Fifth Amendment ri ght against self-incrimination. As a result, the district court offered to order Jose Rincon to testify, concluding he waived his Fifth Amendment protection by pleading guilty. Notwithstanding the district court's determination, Jose Rincon was never called to tes tify. Luis Rincon, who had also pleaded guilty, was called to testify. Luis Rincon testified he did not know any of the three defendants being tried, and denied making any statement to officers after his arrest. He denied knowledge of mo st of what was asked of him by the government. Statements Luis Rincon had give n to officers after his arrest were then used to impeach him. After his arrest, Luis Rincon told officers he had come onto the property at the invitation of Cervantes. He stated he lined up the cups for the marijuana plants and his fingerprints would be on those cups. Luis Rincon also told-5- officers he and Madrigal spent more time in the marijuana grow patches than anyone else. The jury was then instructed that Luis Rincon's guilty plea could be used to determine how much, if at all, to rely on his statements. The district court further instructed the jury any inconsistencies in his statements could only be considered as to his truthfulness.

In addition, the government sought to introduce statements Luis Rincon made during his plea colloquy in order to impeach him. Cervantes objected. The district court overruled the objection, and allowed the government to introduce the factual basis for the plea offered by the prosecution during Rincon's plea hearing. At the plea hearing, Rincon acknowledged the accuracy of the government's factual recitation under oath. Rincon's guilty plea colloquy indi cated he came to the property at the invitation of Cervantes, among other inconsis tencies with his trial testimony. The district court instructed the jury that because Luis Rincon wa s being questioned about a statement he had given under oath, and those statements we re inconsistent with his trial testimony, the jury could consider th e prior statements as substantive evidence.

A jury found Cervantes guilty of conspi racy to manufacture marijuana. The district court sentenced Cervantes to the statutory mandatory minimum term of 120 months' imprisonment for a conspiracy involving more than 1000 marijuana plants, followed by five years of supervised releas e. Cervantes filed a timely appeal. On appeal, she contends the evid ence was insufficient to support the verdict, the district court erred in ruling that Jose Rincon waived his Fifth Amendment right against self-incrimination by pleading guilty, and the district court erred in allowing statements Luis Rincon admitted to during his plea hearing to be entered as substantive evidence in violation of the Confrontation Clause.-6- II

Cervantes first argues there was insuffi cient evidence for a jury to find her guilty. We review challenges to the suffici ency of the evidence presented at trial de novo. United States v. Crippen , 627 F.3d 1056, 1064 (8th Cir. 2010). Moreover, "[w]e consider the evidence in the light most favorable to th e jury's verdict, draw all reasonable inferences in the Government's favor, and reverse a conviction only if no reasonable jury could have found the de fendant guilty beyond a reasonable doubt." Id. at 1064-65 (citing United States v. Butler , 594 F.3d 955, 964 (8th Cir. 2010)). To prove a conspiracy exists, the government must prove beyond a reasonable doubt:

(1) two or more persons reached an agreement or came to an understanding to commit against the Un ited States the criminal offense of knowingly and intentionally manuf acturing marijuana; (2) defendant individually, voluntarily, and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effec t; [and,] (3) at the time de fendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding.

United States v. Scott , 64 F.3d 377, 380 (8th Cir. 1995).

Cervantes contends we must reverse her conviction because there is a lack of evidence excluding all other hypotheses but gu ilt. However, "'[a] conviction may be based on circumstantial as well as direct evidence. The evid ence need not exclude every reasonable hypothesis except guilt. '" United States v. Van Nguyen , 602 F.3d 886, 898 (8th Cir. 2010) (quoting United States v. Erdman , 953 F.2d 387, 389 (8th Cir. 1992)).

Additionally, "a defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he or she was a member of the conspir acy." United States v. Lopez , 443 F.3d 1026, 1030-7- (8th Cir. 2006). "The elements of conspiracy may be proved by direct or circumstantial evidence, and the jury may draw reasonable inferences from the evidence presented about what the defendant's state of mind was when he did or said the things presented in the evidence. " United States v. Chavez-Alvarez , 594 F.3d 1062, 1067 (8th Cir. 2010) (internal c itations and quotation marks omitted).

In this case, Cervantes acknowledges a c onspiracy existed, as three of her co-defendants pleaded guilty to the conspi racy, but argues there is no established connection linking her to the conspiracy. We disagree. Cervantes owned the property where the marijuana growing operation wa s located. She leased the property to co-defendant Jose Rincon, whom she admitted was her boyfriend. Cervantes purchased a storage shed and well pump for the property, as well as various cultivation tools, hosing, and irrigation equipment. Receipts for these items were found both in the shed and in a pickup truc k on the property, interspersed with many other receipts belonging to Cervantes. Cer vantes was observed by officers on the property near the storage shed with her co-defendants. Officers also observed Cervantes walking up a path toward the area of the marijuana patches with her co-defendants. Additionally, an officer te stified he had been on the property previous to Cervantes's ownership, and there was no evidence of marijuana production. Yet, three months after Cervantes purchased th e property, the officer's flyover revealed hosing and rows of dirt mounds, consiste nt with what was discovered amongst dead stalks of harvested marijuana plants wh en the property was searched in August 2008. We conclude there was sufficient evidence to support the jury's decision to find her guilty.

Cervantes next claims the district court erred in ruling that co-defendant Jose Rincon waived his Fifth Amendment right against self-incrimination by pleading guilty. Cervantes presents a thorough colloquy about her objection to the district court ruling Jose Rincon could not assert hi s Fifth Amendment right against selfincrimination if called to testify, becau se of his previously entered guilty plea.-8- Cervantes acknowledges, however , Jose Rincon was never calle d to testify. Thus, we need not consider this issue as the distri ct court's ruling had no effect on Cervantes's conviction.

Finally, Cervantes contends the district c ourt violated her right to confrontation under Crawfordby admitting as substantive evidence statements Luis Rincon made at his guilty plea hearing. We review "e videntiary rulings re garding the scope of cross-examination for an abuse of disc retion, except where the Sixth Amendment confrontation clause is implicated, and thenour review is de novo." United States v. Jewell , 614 F.3d 911, 920 (8th Cir. 2010) (citing United States v. Ragland , 555 F.3d 706, 712 (8th Cir. 2009)).

The district court allowed the jury to consider statements Luis Rincon adopted as his own at his plea hearing because th ey were made under oath and inconsistent with his trial testimony. "[P]rior inconsis tent statements by a witness are not hearsay and are competent as substan tive evidence if the declaran t testifies at trial and is subject to cross-examination concerning th e statement, and the prior inconsistent statement was given under oath at a 'trial, hearing, or other proceeding.'" United States v. Wilson , 806 F.2d 171, 175-76 (8th Cir. 1986) (quoting Fed. R. Evid. 801(d)(1)(A)). In Wilson , we held a prior inconsistent statement given by a witness under oath during a grand jury proceeding coul d be used as substantive evidence. Id. This same rationale applies to other statements made under oath, including a statement made at a plea colloquy. See United States v. Meza-Urtado , 351 F.3d 301, 303 (7th Cir. 2003) (holding sworn statements made during a co-defendant's plea colloquy were properly received as substantive evidence pursuant to Fed. R. Evid. 801(d)(1)(A)).

Cervantes contends the district court e rred in allowing Luis Rincon's guilty plea colloquy because the statement was merely anadoption of the prosecutor's recitation of the factual basis for Rincon's plea a nd not a statement made directly by Luis-9- Rincon. In a factually similar Sixth Circu it case, the court held an adopted statement of fact by a witness during a plea coll oquy was properly admitted as substantive evidence in a co-defendant’s trial, even though the witness did not make the statement directly. United States v. Letner , 273 F. App'x 491, 495 (6th Cir. 2008). The court reasoned the witness "affirmed the entirety of his plea agreement under oath" and thus "any prior inconsistent statements containe d in that agreement were properly admitted as substantive evidence." Id. We agree.

Cervantes further asserts a co-defendant 's guilty plea is only admissible as to his credibility, but is not to be admitted as substantive evidence of the defendant's guilt. For this proposition, she relies on United States v. Kroh , 915 F.2d 326 (8th Cir. 1990), where the court stated "[i]n the Ei ghth Circuit, the law is clear that 'a confederate's guilty plea is ad missible, even on the Government's direct examination of the witness, as evidence of the witness' credibility, or of his acknowledgment of participation in the offense.'" Id. (emphasis omitted) (quoting United States v. Hutchings , 751 F.2d 230, 237 (8th Cir. 1984)). Cervantes therefore argues the admission of Luis Rincon's guilty plea colloquy as substantive evidence was

erroneous.
As stated above, Rule 801(d)(1)(A) of th e Federal Rules of Evidence allows the admission of prior inconsistent statements as substantive eviden ce when they are made under oath. No such prior inconsis tent statement was involved in Kroh . The district court properly admitted Luis Rincon's adopt ed plea colloquy as substantive evidence under Rule 801(d)(1)(A) as it was incons istent with his testimony at trial.

To the extent Cervantes argues the use of Luis Rincon's statement violates her Sixth Amendment right of confrontation, she is mistaken. Crawfordprovides "[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." 541 U.S. at 59 n.9. Accordingly, because Luis Rincon was subject to cross-examination at trial, there was no violation of Cervantes's Sixth Amendment rights.-10- III

We affirm the judgment of conviction.

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