UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5578

DAVID LYNN ROGERS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Chief District Judge.

(CR-94-38-F)

Submitted: July 30, 1996

Decided: August 23, 1996

Before HAMILTON and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for

Appellant. Janice McKenzie Cole, United States Attorney, Eric Evenson, Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Following a jury trial, David Lynn Rogers was convicted of one

count of conspiracy to distribute and possess with intent to distribute

marijuana in violation of 21 U.S.C. § 841(a)(1) (1988), and one count

of criminal forfeiture pursuant to 21 U.S.C. § 853(a)(1), (2) (1988).

Rogers appeals his conviction on several grounds. We find no merit

to his claims; consequently, we affirm.

From 1990 to 1994, Kenneth Spence, Ronnie Musselwhite, and

others were involved with buying marijuana in Louisiana, Alabama,

and Texas, and bringing it to North Carolina and South Carolina for

distribution. Rogers became involved in 1992 when Musselwhite

introduced him to Spence. Rogers began regularly buying between ten

and thirty pounds of marijuana from Spence. Later, Rogers and his

nephew, Keith Rogers, began meeting with Spence and Spence's girlfriend, Crystal Lazarus, to make purchases of up to forty pounds of

marijuana at a time. These transactions continued through 1994.

Sometimes, Rogers also bought marijuana directly from Musselwhite

from shipments Musselwhite was delivering to Spence. Rogers continued doing business with both Musselwhite and Spence even after

Spence stopped dealing directly with Musselwhite.

Rogers also had dealings with other people, including Russell Miller, who sold him marijuana. At other times, Rogers sold Miller marijuana he had obtained from Musselwhite.

In September 1993, Musselwhite became an informant for the

North Carolina State Bureau of Investigation ("NCSBI"). In this

capacity, he tape recorded a conversation with Rogers in which they

discussed Musselwhite's loan of shotguns to an unnamed person later

identified as Spence and the arrest of a man in Wilmington, North

Carolina, who had more than 300 pounds of marijuana and $118,000

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in his possession at the time of the arrest. Rogers stated that he knew

that the marijuana had come from the same supplier he had used by

the way it had been packaged. During Rogers' jury trial, portions of

the tape recorded conversation were played for the jury.

The criminal investigation continued into 1994. In early December

1994, Spence's source in Texas delivered between 100 and 200

pounds of marijuana to Spence, who in turn gave Rogers and his cousin seventy-five and one quarter pounds for which they were to pay

him $1000 per pound. Rogers paid $25,000 a few days later. When

Spence was arrested shortly thereafter, his billfold contained a record

stating that "KD" owed him $50,250. Spence testified that the notation meant that Keith and David Rogers owed him $50,250. During

a warranted search of Spence's home, police found David Rogers'

business card with the pager numbers of both David and his cousin.

The jury convicted Rogers of conspiracy to possess with intent to

distribute marijuana and the court sentenced him to 121 months in

prison. Rogers timely appealed.

I.

Pursuant to Fed. R. Crim. P. 29, Rogers filed a motion for a judgment of acquittal, which the trial court denied. The court then

instructed the jury regarding both single conspiracies and multiple

conspiracies. On appeal, Rogers claims that the district erred in denying his motion for judgment of acquittal because the evidence at trial

established multiple conspiracies rather than the single conspiracy

charged in the indictment.

The Government bears the burden of proving a single conspiracy

charged in an indictment. United States v. Hines , 717 F.2d 1481, 1489

(4th Cir. 1983), cert. denied, 467 U.S. 1214 (1984), and cert. denied,

467 U.S. 1219 (1984). Whether the evidence shows a single conspiracy or multiple conspiracies, however, is a question of fact and is

properly the province of the jury. United States v. Banks, 10 F.3d

1044, 1051 (4th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W.

3755 (U.S. May 16, 1994) (No. 93-8404), and cert. denied, ___ U.S.

___, 62 U.S.L.W. 3825 (U.S. June 13, 1994) (No. 93-8056); United

States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). "A single con-

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spiracy exists where there is `one overall agreement,' . . . or `one general business venture.' Whether there is a single conspiracy or

multiple conspiracies depends upon the overlap of key actors, methods, and goals." United States v. Leavis, 853 F.2d 215, 218 (4th Cir.

1988) (citations omitted). Where a jury is properly instructed regarding a single versus multiple conspiracies, a finding of a single conspiracy must stand unless the evidence, taken in the light most

favorable to the Government, would not allow a reasonable jury to

reach such a conclusion. United States v. Camps , 32 F.3d 102, 104

(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3626 (U.S.

Feb. 21, 1995) (No. 94-6853). Here, the record discloses sufficient

evidence for a reasonable jury to find Rogers guilty of participating

in a single conspiracy.

The Government presented several witnesses who testified about

drug trafficking activities from Texas to the Carolinas from 1990 to

1994. Although Rogers claims that nobody participated in the conspiracy from beginning to end, Spence testified that his involvement

continued to some extent throughout the entire time span. When Rogers became involved in the drug activities in 1992, he purchased marijuana from both Spence and Musselwhite. The evidence showed that

Rogers knew the conspiracy's main purpose and voluntarily participated in it. A reasonable jury could find from the evidence presented

at trial that all of the co-conspirators in the Carolinas worked with

each other to obtain large quantities of marijuana from Texas. The

fact that the co-conspirators may have competed with one another for

supplies or customers does not disprove the existence of a single conspiracy. Banks, 10 F.3d at 1054. Consequently, the district court did

not err by denying Rogers' Rule 29 motion.

II.

Over Rogers' objections, the district court allowed the Government

to introduce at trial the tape recorded conversation between Musselwhite and Rogers. As the Government notes, Rogers does not object

to the introduction of his portions of the taped conversation; rather,

he objects to the introduction of Musselwhite's statements as inadmissible hearsay.

The taped conversation was introduced as Rogers' statement. Musselwhite's portion of the conversation was needed to enable the jury

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to comprehend the context in which Rogers made his statements.

Thus, Musselwhite's statements were offered not for the truth of the

matters he asserted, but rather to enable the jury to understand Rogers' statements.

Rogers' taped statements were admissible as statements against

interest under Fed. R. Evid. 801(d)(2)(A). Musselwhite's statements

were admissible to establish the context of Rogers' statements and, as

such, were not hearsay. Therefore, the district court did not exceed its

discretion by admitting the tapes into evidence. United States v.

McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990); cf. United States v.

Whittington, 26 F.3d 456, 465 (4th Cir. 1994) (absent extraordinary

circumstances or clear abuse of discretion, appeals court will not

interfere with trial court's evidentiary rulings).

III.

The district court attributed 2000 pounds of marijuana to Rogers

for sentencing purposes. On appeal, Rogers challenges his sentence

calculations, claiming that the district court attributed too much marijuana to him.

In drug cases, a "defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a

jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity

that he jointly undertook." United States Sentencing Commission,

Guidelines Manual, § 1B1.3, comment. (n.2) (Nov. 1994). A defendant is liable for the acts of his co-conspirators if those acts "fall

within the scope of" the criminal agreement, even if the defendant and

his co-conspirators have not expressly agreed to undertake any particular act. United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993), cert.

denied, ___ U.S. ___, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994) (No.

93-7103). The Government must establish by a preponderance of the

evidence that a particular amount of drugs may be attributed to a particular defendant for sentencing purposes. United States v. McDonald,

61 F.3d 248, 255 (4th Cir. 1995). The government may meet its burden by pointing to evidence adduced at trial, and the sentencing court

may consider other reliable evidence without regard to whether it was

or could have been admitted at trial. Cf. id. On appeal, the sentencing

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court's determination of the quantity of drugs attributable to a defendant must be upheld unless clearly erroneous. United States v.

Fletcher, 74 F.3d 49, 55 (4th Cir. 1996), petition for cert. filed, ___

U.S.L.W. ___ (U.S. June 24, 1996) (No. 95-9447).

Rogers' claim that the district court attributed too much marijuana

to him is without merit. The court attributed to Rogers only the

amount of marijuana he received from Musselwhite and Spence. At

the sentencing hearing, Agent Netherland of the North Carolina State

Bureau of Investigation testified that Musselwhite said he had distributed 1000 pounds of marijuana to Rogers and Spence said he had distributed 1000 to 1500 pounds of marijuana to Rogers. Although

Rogers claims that Netherland was unable to corroborate these estimates, the agent testified that the amount Spence claimed to have distributed to Rogers was consistent with the amount Musselwhite said

was distributed at that time. Furthermore, he noted that Crystal Lazarus witnessed many of the transactions and therefore could corroborate Spence's estimates, and that Russell Miller, who dealt with

Musselwhite through Rogers, could verify Rogers' participation in the

drug distributions. Finally, Netherland said that the co-conspirators

with whom he spoke had given consistent statements about their participation in the conspiracy and that he had "no reason to doubt . . .

that they would be incorrect on this one individual." In light of the

evidence, we find that the district court did not clearly err in attributing 2000 pounds of marijuana to Rogers.

IV.

Rogers argues that the district court should have granted him a

two-level decrease in his offense level for being a minor participant

in the conspiracy. See U.S.S.G. § 3B1.2(b) (Nov. 1994). He claims he

is entitled to a lower offense level because he did not become

involved in the conspiracy until "very late" in its existence and was

involved only in the lower echelon of the enterprise. These claims are

without merit.

A minor participant, for purposes of U.S.S.G. § 3B1.2(b), is "any

participant who is less culpable than most other participants."

U.S.S.G. § 3B1.2, comment. (n.3). This Court will not disturb a district court's denial of a decrease in offense level under U.S.S.G.

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§ 3B1.2(b) unless that decision was clearly erroneous. United States

v. Terry, 86 F.3d 353, 358 (4th Cir. 1996).

Here, although Rogers did not join the conspiracy until two years

after its inception, he was an active participant from that point on

until his arrest. In general, a drug seller in a drug conspiracy cannot

be considered a minor participant. United States v. Brooks, 957 F.2d

1138, 1149 (4th Cir.), cert. denied, 505 U.S. 1228 (1992). Evidence

presented at trial showed that Rogers' involvement in the conspiracy

included not only buying and selling marijuana, but also arranging for

financing for drug transactions. In light of this evidence, the district

court's refusal to characterize Rogers as a minor participant was not

clearly erroneous.

V.

For these reasons, we affirm Rogers' conviction and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

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