United States v. Jordan

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 06-4258
PETER ROBERT JORDAN, a/k/a Pete,
a/k/a Richard Mercer,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 06-4264
ARTHUR LORENZO GORDON, a/k/a Ron
Green, a/k/a New York,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:04-cr-00058-HEH)

Argued: September 28, 2007

Decided: December 4, 2007

Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge,
and Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.

Affirmed in part; reversed in part by published opinion. Chief Judge
Williams wrote the majority opinion, in which Judge Gregory con-
2 UNITED STATES v. JORDAN
curred. Judge Wilson wrote a separate opinion concurring in part and
dissenting in part.

COUNSEL

ARGUED: Gerald Thomas Zerkin, Paul G. Gill, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appel-
lants. David John Novak, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria,
Virginia, for Appellant Arthur Lorenzo Gordon; Muriel-Theresa Pit-
ney, Richmond, Virginia, Cary B. Bowen, BOWEN, CHAMPLIN,
CARR & ROCKECHARLIE, Richmond, Virginia, for Appellant
Peter Robert Jordan. Chuck Rosenberg, United States Attorney, Alex-
andria, Virginia, Roderick C. Young, Matthew C. Ackley, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.

OPINION

WILLIAMS, Chief Judge:

A jury convicted Arthur Gordon and Peter Jordan of murder while
engaged in a drug trafficking offense, in violation of 21 U.S.C.A.
§ 848(e)(1)(A) (West 1999) and 18 U.S.C.A. § 2 (West 2000); con-
spiracy to use and carry firearms during and in relation to a drug traf-
ficking offense, in violation of 18 U.S.C.A. § 924(o) (West 2000 &
Supp. 2006); and possession of a firearm in furtherance of a drug traf-
ficking offense, in violation of 18 U.S.C.A. §§ 924(c) and 2 (West
2000 & Supp. 2006). The jury also convicted Jordan of conspiracy to
distribute and to possess with intent to distribute crack cocaine and
heroin, in violation of 21 U.S.C.A. § 846 (West 1999). On appeal,
Gordon argues that his convictions are barred by the unambiguous
terms of a November 26, 2002 plea agreement he entered into with
the Government. Gordon and Jordan together raise Sixth Amendment
and evidentiary challenges to certain testimony admitted at their joint
trial, including a challenge to the sufficiency of the evidence.
 UNITED STATES v. JORDAN 3
We affirm in part and reverse in part. Because we conclude that
Gordon’s prior plea agreement forecloses his convictions in the East-
ern District of Virginia for the crimes charged in the September 7,
2004 indictment, we reverse his convictions. On the other hand, we
reject Jordan’s Sixth Amendment and evidentiary challenges and thus
affirm his convictions.

I.

This case arose from the "brutal murder" of Dwayne Tabon. United
States v. Jordan, 357 F. Supp. 2d 889, 891 (E.D. Va. 2005). On Sep-
tember 14, 2001, during a drug transaction in an apartment in Rich-
mond, Virginia, Gordon and Jordan forcibly abducted Tabon, took
him to another location, and set him on fire. Id. at 891. Suffering from
burns over ninety percent of his body, Tabon died ten days later. Id.
at 891.

On September 7, 2004, a grand jury sitting in the Eastern District
of Virginia returned an indictment against Gordon and Jordan, charg-
ing both men with murder while engaged in a conspiracy to distribute
and to possess with intent to distribute 50 or more grams of crack
cocaine (Count One); conspiracy to use and carry a firearm during
and in relation to the same crack cocaine conspiracy (Count Two);
and possession of a firearm in furtherance of the crack cocaine con-
spiracy (Count Three). The indictment also charged Jordan with con-
spiracy to distribute crack cocaine and heroin from 1999 until June
17, 2004. Counts One, Two, and Three alleged that the offenses
occurred on or about September 14, 2001.

On September 17, 2004, Gordon filed a motion to dismiss the
indictment, arguing that the terms of his November 26, 2002 plea
agreement with the Government did not permit his prosecution for the
charged crimes. The district court denied Gordon’s motion to dismiss
the indictment, concluding that the plea agreement was unambiguous
and proved no bar to the Government’s prosecution of Gordon.
United States v. Gordon, 343 F. Supp. 2d 514, 518 (E.D. Va. 2004).

Gordon’s and Jordan’s trial began on October 27, 2005. At trial,
the Government sought to introduce statements made by a deceased
alleged co-conspirator, Octavia Brown, to her friend Paul Adams.
4 UNITED STATES v. JORDAN
Gordon and Jordan objected to the admission of the statements, argu-
ing that, under Crawford v. Washington, 541 U.S. 36 (2004), the
statements were "testimonial" and thus barred by the Sixth Amend-
ment’s Confrontation Clause. United States v. Jordan, 399 F. Supp.
2d 706, 708 (E.D. Va. 2005)("Jordan II"). They also argued that the
statements were inadmissible hearsay. Id. The district court rejected
these arguments and admitted the statements, concluding that the
statements were non-testimonial and admissible under Federal Rule of
Evidence 804(b)(3) as statements against interest. Id. at 708-710.

At the close of the Government’s case-in-chief, Gordon and Jordan
moved for a judgment of acquittal. The district court denied both
motions. Gordon and Jordan renewed their motions at the close of all
the evidence, and the district court again denied both motions.

Ultimately, the jury convicted Gordon and Jordan on all counts,
and each was sentenced to life imprisonment. Gordon renewed his
motion for judgment of acquittal or, alternatively, for a new trial, but
the district court again denied the motion. Both defendants timely
appealed. We have jurisdiction over this appeal pursuant to 28
U.S.C.A. § 1291 (West 2006).

II.

We begin with Gordon’s argument that his prosecution for the
crimes charged in the 2004 indictment violated the terms of his earlier
plea agreement. Gordon had previously been indicted by a grand jury
sitting in the Eastern District of Virginia on September 18, 2002, on
one count of conspiracy to distribute and to possess with intent to dis-
tribute 50 or more grams of crack cocaine, in violation of 21 U.S.C.A.
§ 846, and several counts of distribution of controlled substances. The
charged conspiracy began "as early as 2001" and continued "through
at least as late as August, 2002." (J.A. at 73.)1 Gordon entered into a
plea agreement with the Government on November 26, 2002.

Under the terms of the plea agreement, Gordon agreed to plead
guilty to one count of distribution of a controlled substance, in viola-
1
Citations to "(J.A. at ____.)" refer to the contents of the Joint Appen-
dix filed by the parties to this appeal.
 UNITED STATES v. JORDAN 5
tion of 21 U.S.C.A. § 841 (West 1999 & Supp. 2007). In exchange,
the Government agreed to dismiss the other counts in the indictment,
including the count charging Gordon with the crack cocaine conspir-
acy. Specifically, Paragraph 5 of the plea agreement stated in perti-
nent part:

The United States will not further criminally prosecute
[Gordon] in the Eastern District of Virginia for the specific
conduct described in the indictment or statement of facts.
Therefore, [Gordon] does not have immunity for crimes
related to, but not specifically set out in the indictment or
statement of facts.

(J.A. at 77 (emphasis added).)

We review the district court’s interpretation of a plea agreement de
novo. United States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004). In
interpreting plea agreements, we draw upon contract law as a guide
to ensure that each party receives the benefit of the bargain. United
States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993). Applying stan-
dard contract law, we enforce a plea agreement’s "plain language in
its ordinary sense," United States v. Holbrook, 368 F.3d 415, 420 (4th
Cir. 2004)(internal quotation marks omitted), vacated on other
grounds, 545 U.S. 1125 (2005), and "do not write the contracts of the
parties retroactively, but merely construe the terms of the contract the
parties have previously signed," id. (quoting United States v. Race,
632 F.2d 1114, 1119 (4th Cir. 1980)). "[W]hether a written agreement
is ambiguous or unambiguous on its face should ordinarily be decided
by the courts as a matter of law." United States v. Harvey, 791 F.2d
294, 300 (4th Cir. 1986). If the plea agreement is unambiguous as a
matter of law, and there is no evidence of governmental overreaching,
we should interpret and enforce the agreement accordingly. Id.

"Because a defendant’s fundamental and constitutional rights are
implicated when he is induced to plead guilty by reason of a plea
agreement," we analyze a plea agreement with "greater scrutiny" than
we would apply to a commercial contract. United States v. McQueen,
108 F.3d 64, 66 (4th Cir. 1997). We thus hold "the Government to a
greater degree of responsibility than the defendant . . . for impreci-
sions or ambiguities in plea agreements." Harvey, 791 F.2d at 300.
6 UNITED STATES v. JORDAN
On appeal, Gordon contends that, based on the language of the plea
agreement, the Government could not prosecute him for any crimes
that would require it to prove the conspiratorial conduct charged in
the 2002 indictment. We agree.

The first sentence of Paragraph 5 of the plea agreement, the opera-
tive paragraph for purposes of this appeal, provides that the Govern-
ment "will not further criminally prosecute [Gordon] in the Eastern
District of Virginia for the specific conduct described in the indict-
ment or statement of facts." (J.A. at 77 (emphasis added).) The clear
focus of the first sentence is on the conspiratorial "conduct." The sec-
ond sentence of Paragraph 5 in turn provides that Gordon "does not
have immunity for crimes related to, but not specifically set out in the
indictment or statement of facts." (J.A. at 77 (emphasis added).)
Unlike the first sentence of Paragraph 5, this sentence speaks only of
"crimes" — not "conduct" — related to those crimes charged in the
2002 indictment. It is almost too plain to state that the "conduct" spo-
ken of in the first sentence is analytically and conceptually distinct
from the "crimes" spoken of in the second sentence, for "crimes" is
a much narrower concept than "conduct." See Gavieres v. United
States, 220 U.S. 338, 345 (1911) ("While it is true that the conduct
of the accused was one and the same, two offenses [or crimes]
resulted, each of which had an element not embraced in the other.").
The term "crime" is a legal term of art; it is an "act that the law makes
punishable." Black’s Law Dictionary 399 (8th ed. 2004). Conduct, in
contrast, is "personal behavior, whether by action or inaction" and is
a term that transcends the legal context. Id. at 315.

An illustration may help clarify this distinction: assume John Doe,
a convicted felon with a controlled substance in his pocket, walked
into a bank, brandished a firearm at the clerk, and then left after suc-
cessfully robbing the bank. That behavior would constitute John
Doe’s conduct. From that conduct, however, Doe could be liable for
multiple crimes. For instance, Doe could be charged with possession
of a controlled substance in violation of 21 U.S.C.A. § 844 (West
1999 & Supp. 2007); bank robbery, in violation of 18 U.S.C.A.
§ 2113(a) (West 2000 & Supp. 2006); brandishing a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C.A.
§ 924(c)(1)(A)(ii) (West 2000 & Supp. 2006); and possession of a
 UNITED STATES v. JORDAN 7
firearm by a convicted felon, in violation of 18 U.S.C.A. § 922(g)(1)
(West 2000 & Supp. 2006).

Thus, taken as a whole, Paragraph 5 permits the Government to
prosecute Gordon for crimes "related" to those charged in the 2002
indictment, so long as they do not require the Government to prove
the conduct underlying the 2002 conspiracy count as an element of
the "related" crimes.2

For example, if, as part of the drug conspiracy, Gordon had mur-
dered Tabon during a carjacking, nothing in the plea agreement would
have stopped the Government from prosecuting Gordon for the mur-
der under 18 U.S.C.A. § 2119(3) (West 2000 & Supp. 2006), the fed-
eral carjacking statute. Although the hypothetical carjacking no doubt
would have qualified as an overt conspiratorial act, carjacking is not
part of the conspiratorial conduct covered by the terms of the plea agree-
ment.3

Importantly, before us the Government does not dispute that the
conspiracy charged in each count of the 2004 indictment was the
same conspiracy charged in the 2002 indictment against Gordon.
Nevertheless, it contends that prosecution of Gordon for the crimes
charged in the 2004 indictment did not violate the terms of the earlier
plea agreement because those "crimes" were not charged in the 2002
indictment. This argument conflates the word "conduct" with the
word "crime," even though, as we have explained, the terms are not
synonymous. Instead, by choosing to use the term "conduct" in the
first sentence of Paragraph 5 and the term "crime" in the second sen-
2
Relatedly, the Government argues that the second sentence of Para-
graph 5 of the plea agreement unequivocally carves out "crimes of vio-
lence" from inclusion in the agreement. (Appellee’s Br. at 39.) Neither
this sentence nor any other part of the plea agreement, however, men-
tions "crimes of violence." We will not read a "crimes of violence"
clause into this plea agreement where one does not exist.
3
By way of further example, Gordon’s counsel conceded at oral argu-
ment that the Government could have prosecuted Gordon under 18
U.S.C.A. § 1111(b) (West 2000) for murder "[w]ithin the special mari-
time and territorial jurisdiction of the United States" if Gordon had mur-
dered Tabon on federal land.
8 UNITED STATES v. JORDAN
tence, the Government could only have meant different things; other-
wise, the second sentence would have been entirely superfluous. If the
Government meant to bargain away its right to prosecute Gordon for
the "crime" of participating in a drug conspiracy yet retain its right
to prosecute him for "crimes" requiring proof of the drug conspiracy,
e.g., murder while engaged in a drug conspiracy, it should have used
the word "crime" instead of the word "conduct" in the first sentence
of the plea agreement with Gordon. If that had occurred, it would
have been unnecessary to include a second sentence expressly permit-
ting the Government to prosecute Gordon for crimes related to the
crimes charged in the first sentence.

The correctness of our conclusion becomes apparent when consid-
ering Gordon’s conviction for murder while engaged in a drug con-
spiracy. Although the physical act of murdering Tabon constituted
conduct distinct from the conduct described in the 2002 indictment,
the crime charged in the 2004 indictment was not simply murder, but
murder while engaged in a drug conspiracy.4 Therefore, in order to
4
The district court overlooked this critical distinction when it con-
cluded that the conspiracy charge in the 2002 indictment was legally and
factually distinguishable from the "specific conduct" charged in Counts
One, Two, and Three of the 2004 indictment, emphasizing that the 2002
indictment did not mention "murder, crimes of violence, firearms or
analogous offenses." United States v. Gordon, 343 F. Supp. 2d 514, 518
(E.D. Va. 2004).
The district court believed that the use of the word "therefore" in the
second sentence of Paragraph 5 buttressed its interpretation of the plea
agreement by demonstrating that the second sentence was "intended to
clarify the first." Id. With due respect to the district court, we believe that
the plea agreement’s use of the word "therefore" does not blur the line
between the distinct meanings of the words "conduct" and "crime."
Indeed, the word "therefore" only has real meaning in Paragraph 5 if we
give the words "conduct" and "crime" their natural and different mean-
ings. As we note above, to collapse the very real differences between the
words "conduct" and "crime" so that "conduct" really means the same
thing as "crime" in Paragraph 5, as the Government contends on appeal,
renders the second sentence of Paragraph 5, including the word "there-
fore," completely unnecessary to effectuate the goals the Government
now says it had in crafting the agreement. The most natural reading of
 UNITED STATES v. JORDAN 9
prosecute Gordon under the 2004 indictment, the Government had to
prove both the physical act of murder and the conduct establishing the
drug conspiracy — the same drug conspiracy alleged in the 2002
indictment. The Government itself recognized at trial that proof of the
drug conspiracy conduct was as essential to its case as proof of the
physical act of murder, as evidenced by the following statement from
the Government’s closing:

Count 1 is the murder while engaged in a drug conspiracy.
. . . While engaged in the drug conspiracy charged in Count
1, remember that drug conspiracy is possess[ion] with the
intent to distribute 50 grams or more of crack cocaine. . . .
That during this conspiracy they intentionally killed the vic-
tim or caused the intentional killing of the victim. And
we’re going to go into each of these elements separately.

(J.A. at 2586-87.)

This statement reflects the Government’s perfectly correct under-
standing of the hornbook principle of criminal law that one element
of a crime is no more "essential" than another. See Patterson v. New
York, 432 U.S. 197, 210 (1977)("[T]he Due Process Clause requires
the prosecution to prove beyond a reasonable doubt all of the ele-
ments included in the definition of the offense of which the defendant
is charged."). The "drug conspiracy" element of the crime defined in
21 U.S.C.A. § 848(e)(1)(A) is as essential to the Government’s bur-
den of proof as the "murder" element itself. As such, we cannot vali-
date the Government’s prosecution of Gordon for the crimes charged
in the 2004 indictment because to do so would run afoul of the plea
agreement terms, i.e., the Government cannot meet its burden of proof
on any of the charged crimes without proving the very conspiratorial
conduct that was made off limits by the plea agreement.

the language of Paragraph 5, which gives the words "conduct" and
"crime" their ordinary meanings, is that the Government is free to prose-
cute Gordon for crimes "related" to those crimes charged in the 2002
indictment so long as those prosecutions do not require it to prosecute the
conspiratorial conduct alleged in the 2002 indictment.
10 UNITED STATES v. JORDAN
Our reasoning comports with our decision in United States v.
Burns, 990 F.2d 1426 (4th Cir. 1993). In that case, Burns sought dis-
missal of one count of travelling in interstate commerce to facilitate
an unlawful drug activity ("interstate travel count") on the ground that
an earlier plea agreement with the Government barred his prosecution
for that crime. Id. at 1431. In the earlier agreement, Burns had
pleaded guilty to two counts of travelling in interstate commerce to
facilitate an unlawful drug activity in exchange for the Government’s
promise that it would not oppose his motion to dismiss the conspiracy
counts in the indictment. Id. at 1429. After the Government learned
new information regarding Burns’s criminal activity, it twice sought
and obtained superseding indictments against Burns charging him
with three conspiracy counts and one interstate travel count. Id. at
1429-30. Based on the prior plea agreement, the district court dis-
missed the three conspiracy counts against Burns but refused to dis-
miss the interstate travel count. Id. at 1430.

In determining that the interstate travel count did not constitute the
same conduct covered by the terms of Burns’s earlier plea agreement,
we noted that Congress made the interstate travel count a substantive
offense separate from conspiracy, id. at 1431, and that "[t]he mere
fact that evidence of interstate travel is offered to prove the objective
fact of a conspiracy does not as a matter of law prevent the Govern-
ment from prosecuting an individual subsequently for the separate
interstate travel violation," id. at 1432. We further reasoned that "al-
though evidence of interstate travel may be introduced as part and
parcel of the prosecution’s efforts to prove the existence of a conspir-
acy, interstate travel is not an essential element of that proof." Id. We
thus rejected the claim that prosecution of the interstate travel count
constituted reprosecution for the "same conduct" covered by the ear-
lier plea agreement. Id.

Unlike Burns, where proof of interstate travel was not an essential
element of the conspiracy charge that was dismissed, here proof of the
drug conspiracy is an essential element of crime of murder while
engaged in a drug conspiracy. The Government could not meet its
burden of proof without proving both the physical act of murder and
the existence of the charged drug conspiracy. Similarly, Gordon’s
other convictions — for conspiracy to use and carry a firearm during
and in relation to a drug trafficking offense and for possession of a
 UNITED STATES v. JORDAN 11
firearm in furtherance of a drug trafficking offense — also depend on
proof of the charged drug conspiracy.

In short, reading the first two sentences of Paragraph 5 of the plea
agreement together, we conclude that the plea agreement unambigu-
ously provides that Gordon may not be prosecuted in the Eastern Dis-
trict of Virginia for the offenses in the 2004 indictment because each
offense requires the Government to prove, as an element of the
offense, the very drug conspiracy covered by the terms of Gordon’s
earlier plea agreement. To be sure, Gordon’s plea agreement allows
the Government to prosecute him for crimes related to those charged
in the 2002 indictment so long as the conduct underlying the 2002
conspiracy charge is not an element of the related crimes. But here the
Government had to prove the conspiratorial conduct charged in the
2002 indictment in prosecuting Gordon for each crime charged in the
2004 indictment. In so doing, the Government broke its promise to
Gordon that it would not prosecute him for the specific conduct
described in the 2002 indictment. Further, we note that "[b]ecause a
government that lives up to its commitments is the essence of liberty
under law, the harm generated by allowing the government to forego
its plea bargain obligations is one which cannot be tolerated." United
States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994).

We recognize, however, that the Government likely did not intend
to immunize Gordon from federal prosecution for Tabon’s murder,
particularly if its investigation into Tabon’s murder had commenced
at the time of the 2002 plea agreement. Judge Luttig has offered a
succinct and accurate response to such concerns:

[The Government] should be bound by the terms of its
agreement whether or not that agreement ultimately has the
effect anticipated at the time of execution. The Government,
no less (and arguably more) than a private citizen, must be
held to the agreements it enters into with its citizens.

United States v. Gezen, No. 91-7696, 1992 WL 289, at *3 (4th Cir.
Jan. 3, 1992)(unpublished).

Thus, while the Government likely did not intend to limit its ability
to prosecute Gordon for Tabon’s murder, we are bound to interpret
12 UNITED STATES v. JORDAN
the language the Government did use in the 2002 plea agreement, not
the language it now wishes it had chosen.

Moreover, even were we to find some ambiguity in the Govern-
ment’s use of the terms "conduct" and "crime," in the context of inter-
preting plea agreements "both constitutional and supervisory concerns
require holding the Government to a greater degree of responsibility
than the defendant . . . for imprecisions or ambiguities." Harvey, 791
F.2d at 300. Thus, any such ambiguity would run against the Govern-
ment and would not change our result. Of course, nothing we say
today in anyway undermines Harvey’s suggestion that, in a particular
case, it might "be possible to establish by extrinsic evidence that the
parties to an ambiguously worded plea agreement actually had agreed
— or mutually manifested their assent to — an interpretation as urged
by the Government." Id. at 303. Like Harvey, however, even were we
to find the 2002 plea agreement ambiguous, "that evidence simply
does not exist" in this case. Id.

In closing, we also wish to echo the thoughts of Judge Wilkinson
in noting that:

[O]ur decision is in no way a reflection on the trial judge,
who handled the case admirably under the circumstances.
We further believe that the government inadvertently
breached the plea agreement rather than acting in bad faith.

Peglera, 33 F.3d at 415.

As in Peglera, however, Gordon "failed to receive his benefit of
the bargain." Id. We thus conclude that Gordon’s convictions cannot
stand in light of the plea agreement. Accordingly, we reverse Gor-
don’s convictions.

III.

In contrast to Gordon, Jordan has no prior plea agreement with the
Government. We thus must turn to Jordan’s contention that the
admission of certain statements at trial, which were never "test[ed] in
the crucible of cross-examination," Crawford, 541 U.S. at 61,
 UNITED STATES v. JORDAN 13
deprived him of his Sixth Amendment Confrontation rights or, alter-
natively, that the statements constituted inadmissible hearsay under
the Federal Rules of Evidence. We review the district court’s decision
to admit the testimony for an abuse of discretion. United States v.
Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000).

The statements at issue were made by Octavia Brown, an alleged
co-conspirator of Gordon and Jordan, to her friend Paul Adams.
Adams picked up Brown on the night of Tabon’s murder after receiv-
ing her frantic phone call. (J.A. at 1952-53.) Several days after the
murder, Brown began to stay at Adams’s apartment. Brown eventu-
ally related to Adams "[i]n bits and pieces" what happened on the
night that she frantically called him. (J.A. at 1962.) Brown’s state-
ments to Adams included her admissions that she participated in the
planning of a drug transaction; that she called the source of the drugs;
that she witnessed the arrival of the drug courier (Tabon); that she
was directed to the bedroom; that when she emerged from the bed-
room, she saw Gordon and Jordan with guns pointed at the drug cou-
rier, who was taped up; that she was ordered to go outside and
downstairs to direct the source to come up and settle a discrepancy;
and that the source started toward the apartment but ran when he saw
the number of people inside. Jordan II, 399 F. Supp. 2d at 710-11.
Brown was incarcerated on matters unrelated to this case and commit-
ted suicide in 2002.

Noting that the critical issue was whether Brown reasonably
believed the statements would later be used at trial at the time she
made them, the district court ruled that Brown’s statements to Adams
were non-testimonial and thus did not implicate the Sixth Amend-
ment’s Confrontation Clause. Jordan II, 399 F. Supp. 2d at 709. The
district court also concluded that Brown’s statements, although hear-
say, were admissible as statements against penal interest under Rule
804(b)(3). Id. at 710.

In Crawford, the Supreme Court divided out-of-court statements
into two categories: those that are "testimonial" and those that are not.
Crawford, 541 U.S. at 60-69. The Court stated that testimonial hear-
say is the "primary" concern of the Confrontation Clause. Id. at 53;
United States v. Iskander, 407 F.3d 232, 240 (4th Cir. 2005). The
Confrontation Clause bars the use of testimonial statements unless the
14 UNITED STATES v. JORDAN
declarant is unavailable and the defendant has had a prior opportunity
to cross-examine the declarant. Crawford, 541 U.S. at 53-54. The
Crawford Court gave a non-exclusive list of three examples of "testi-
monial" statements: "ex parte in-court testimony or its functional
equivalent — that is, material such as affidavits, custodial examina-
tions, prior testimony that the defendant was unable to cross-examine,
or similar pretrial statements that declarants would reasonably expect
to be used prosecutorially;" "extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions;" and "statements that were made under cir-
cumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial."
Id. at 51-52 (internal quotation marks omitted).

To our knowledge, no court has extended Crawford to statements
made by a declarant to friends or associates. See United States v.
Franklin, 415 F.3d 537, 545 (6th Cir. 2005)(concluding that state-
ments were non-testimonial where witness "was privy to [Declar-
ant]’s statements only as his friend and confidant"); United States v.
Saget, 377 F.3d 223, 229 (2d Cir. 2004)("Thus, we conclude that a
declarant’s statements to a confidential informant, whose true status
is unknown to the declarant, do not constitute testimony within the
meaning of Crawford."); United States v. Manfre, 368 F.3d 832, 838
n.1 (8th Cir. 2004)("[Declarant]’s comments were made to loved ones
or acquaintances and are not the kind of memorialized, judicial-
process-created evidence of which Crawford speaks."). Even assum-
ing that statements to friends or associates may be considered testimo-
nial in the rare case, the district court correctly concluded that "[t]he
critical Crawford issue here is whether Ms. Brown, at the time she
made her statements to Mr. Adams, reasonably believed these state-
ments would be later used at trial." Jordan II, 399 F. Supp. 2d at 708.
As the district court found, "there was no indication Ms. Brown was
aware that she would be called upon to testify until she was inter-
viewed" by the Richmond City Police Department. Id. at 710.
Brown’s statements, made to a friend rather than to law enforcement
personnel, "appear[ed] to flow more from atonement and contrition"
than from an attempt to record past events or shift blame to others
with the knowledge that the statements would later be used in court.
Id. at 710. There is simply no evidence — only Jordan’s conjecture
— to suggest that Brown knew that her statements to her friend
 UNITED STATES v. JORDAN 15
Adams would later be used at trial. We therefore conclude that the
statements were non-testimonial and thus do not need to resort to
Crawford and its Sixth Amendment principles.5

Jordan alternatively contends that, even if Brown’s statements to
Adams are non-testimonial, they are inadmissible hearsay under Fed-
eral Rule of Evidence 802. The district court found that the statements
fell within Rule 804(b)(3), the hearsay exception for statements
against penal interest. Under Rule 804(b)(3), if the declarant is
unavailable as a witness, "[a] statement which . . . at the time of its
making . . . so far tended to subject the declarant to . . . criminal liabil-
ity . . . that a reasonable person in the declarant’s position would not
have made the statement unless believing it to be true" is not excluded
by the hearsay rule.6 Fed. R. Evid. 804(b)(3).

Because of Brown’s unavailability to testify, the sole question
under Rule 804(b)(3) is whether Brown’s statements to Adams, at the
time they were made, exposed her to criminal liability such that a rea-
sonable person in her shoes would not have made the statements
unless believing them to be true. Brown’s statements to Adams
related to her involvement in a plan to lure a drug dealer to an apart-
5
We note that any doubt left by Crawford as to the applicability of the
Confrontation Clause to non-testimonial hearsay statements was dis-
pelled by the Supreme Court’s unanimous decision in Whorton v. Bock-
ting, 127 S. Ct. 1173 (2007). The Whorton Court made clear that
Crawford overruled Ohio v. Roberts, 448 U.S. 56 (1980), and that "under
Crawford . . . the Confrontation Clause has no application to [out-of-
court non-testimonial] statements and therefore permits their admission
even if they lack indicia of reliability." Whorton, 127 S. Ct. at 1183.
6
The district court, citing United States v. Lowe, 65 F.3d 1137, 1145
(4th Cir. 1995), stated that for Brown’s statements to be admissible as
statements against penal interest, the Fourth Circuit requires "corroborat-
ing circumstances clearly indicat[ing] the trustworthiness of the state-
ment." United States v. Jordan, 399 F. Supp. 2d 706, 709 (E.D. Va.
2005). As Rule 804(b)(3) makes clear, however, corroborating circum-
stances are only required if the statement is "offered to exculpate the
accused." Fed. R. Evid. 804(b)(3). Lowe involved evidence offered to
exculpate the accused. Here, it is plain that Brown’s statements were in
no way offered to exculpate Gordon or Jordan. Thus, the district court
need not have discussed whether "corroborating circumstances" existed.
16 UNITED STATES v. JORDAN
ment and described her observations and actions after she emerged
from the bedroom on the night of Tabon’s murder. She admitted that
she called the dealer to order drugs, that she knew the group planned
to rob the dealer, and that she further participated in the conspiracy
by trying to lure another individual into the apartment. As a co-
conspirator, Brown was legally responsible for all reasonably foresee-
able acts her co-conspirators undertook in furtherance of the conspir-
acy. See Pinkerton v. United States, 328 U.S. 640, 646-48
(1946)(noting that conspirators who have not affirmatively withdrawn
are liable for reasonably foreseeable overt acts of co-conspirators);
United States v. Cummings, 937 F.2d 941, 944 (4th Cir. 1991)(same).
Brown’s statements thus no doubt subjected her to criminal liability
so that a reasonable person would not have made them had they been
untrue.

Jordan counters that Brown’s statements were not entirely self-
inculpatory, i.e., that they were given in bits and pieces as part of a
narrative consisting of both self-inculpatory and non-self-inculpatory
parts. Of course, the self-inculpatory nature of a statement can only
be determined "by viewing [the statement] in context." Williamson v.
United States, 512 U.S. 594, 603 (1994). In Williamson, the Supreme
Court instructed that "statement" should be defined narrowly because
"[t]he fact that a person is making a broadly self-inculpatory confes-
sion does not make more credible the confession’s non-self-
inculpatory parts." Id. at 599. But the Court noted that "confessions
of arrested accomplices may be admissible if they are truly self-
inculpatory, rather than merely attempts to shift blame or curry
favor." Id. at 603.

Here, although Brown’s statements to Adams inculpated Jordan,
they also subjected her to criminal liability for a drug conspiracy and,
by extension, for Tabon’s murder. Brown made the statements to a
friend in an effort to relieve herself of guilt, not to law enforcement
in an effort to minimize culpability or criminal exposure. We thus
conclude that Brown’s statements to Adams were admissible under
Rule 804(b)(3) and that the district court did not abuse its discretion
in admitting them into evidence.7
7
Even if we were to assume some error in the admission of Brown’s
statements, the error was no doubt harmless in light of the overwhelming
 UNITED STATES v. JORDAN 17
IV.

Based on the foregoing, we hold that Gordon’s convictions in the
Eastern District of Virginia for murder while engaged in a crack
cocaine conspiracy, conspiracy to use and carry a firearm during and
in relation to a crack cocaine conspiracy, and possession of a firearm
in furtherance of a crack cocaine conspiracy cannot stand in light of
the terms of his plea agreement. On the other hand, we reject Jordan’s
Sixth Amendment and evidentiary challenges to his convictions.8
Accordingly, we reverse Gordon’s convictions and affirm Jordan’s
convictions.

AFFIRMED IN PART;
REVERSED IN PART

evidence introduced by the Government. See United States v. Banks, 482
F.3d 733, 741-42 (4th Cir. 2007)("Evidentiary rulings are ‘subject to
harmless error review.’ . . . [W]e need only be able to say with fair assur-
ance, after pondering all that has happened without stripping the errone-
ous action from the whole, that the judgment was not substantially
swayed by the error." (citations omitted)).
8
We note that Jordan also challenged the sufficiency of the evidence
supporting his convictions. We have conducted an independent review of
the record; "viewing the evidence and the reasonable inferences to be
drawn therefrom in the light most favorable to the Government," as
required by the appropriate standard of review, United States v. Burgos,
94 F.3d 849, 863 (4th Cir. 1996)(en banc), we believe "the evidence
adduced at trial could support any rational determination of guilty
beyond a reasonable doubt," id. (quoting United States v. Powell, 469
U.S. 57, 67 (1984)). Most of Jordan’s argument amounts to an attack on
the credibility of the Government’s witnesses, but "assessing the credi-
bility of witnesses is within the province of the jury — a task in which
we decline to engage at this stage of the proceedings." United States v.
Johnson, 55 F.3d 976, 979 (4th Cir. 1995); see also United States v.
Beidler, 110 F.3d 1064, 1070 (4th Cir. 1997)(describing the jury as "the
sole judge of the credibility of the witnesses"). Accordingly, we reject
Jordan’s argument.
18 UNITED STATES v. JORDAN
WILSON, District Judge, concurring in part and dissenting in part:

I concur in part III of the court’s opinion and in the affirmance of
Jordan’s conviction. I dissent as to the remainder.

The United States will not further criminally prosecute the
defendant in the Eastern District of Virginia for the specific
conduct described in the indictment or statement of facts.
Therefore, defendant does not have immunity for crimes
related to, but not specifically set out in the indictment or
statement of facts. (Emphasis added).

I dissent because I can neither find the clear, unambiguous mean-
ing the majority finds in these two sentences nor conclude that a
remand is incapable of supplying a mutually agreed upon meaning.
Although I fully agree that if extrinsic evidence cannot supply a
mutually agreed upon meaning we must construe any ambiguity
against the United States, I cannot agree, as the majority has con-
cluded, that "evidence simply does not exist in this case" of a mutual
understanding. I agree that it does not exist on the record before us.
However, it does not exist on the record before us because the district
court found that the language the majority finds unambiguously pro-
hibited the prosecution, unambiguously permitted it, and it had no
reason to explore the matter further.

I agree that the government must live by its agreements, but before
we conclude that the United States’ agreement precluded it from pros-
ecuting Gordon for murder in the course of his drug dealing, we
should be sure extrinsic evidence is incapable of supplying a mutually
agreed upon meaning. I would remand for that purpose. Therefore, I
respectfully dissent.