United States v. Baling Dat

United States Court of Appeals For the Eighth Circuit ___________________________ No. 25-1131 ___________________________ United States of America Plaintiff - Appellee v. Baling N. Dat Defendant - Appellant ___________________________ No. 25-1198 ___________________________ United States of America Plaintiff - Appellee v. Jany Jock Defendant - Appellant ___________________________ No. 25-1199 ___________________________ United States of America Plaintiff - Appellee  v. Dilang Dat Defendant - Appellant ___________________________ No. 25-1246 ___________________________ United States of America Plaintiff - Appellee v. Dilang Dat Defendant - Appellant ____________ Appeal from United States District Court for the District of Nebraska - Omaha ____________ Submitted: February 11, 2026 Filed: July 9, 2026 ____________ Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges. ____________ BENTON, Circuit Judge. Baling N. Dat appeals his criminal convictions for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm as a prohibited person, in violation of 18 -2- U.S.C. §§ 922(g)(1), 924(a)(2). Dilang N. Dat appeals his criminal conviction for possession of a firearm as a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). And, Jany G. Jock appeals his criminal conviction for selling or otherwise disposing of a firearm to a felon, in violation of 18 U.S.C. §§ 922(d)(1), 924(a)(2). They collectively challenge the district court’s1 admission of conspiracy and gang- related evidence. Baling separately argues that the district court erred in denying his motions to suppress and sever. Dilang and Jock appeal the denial of their motions for acquittal. Finally, Baling and Dilang appeal their sentences. Having jurisdiction under 18 U.S.C. § 1291, this court affirms. I. Around December 2021, a citizen told the Omaha Police that drugs and firearms were inside 4704 Ellison Avenue, and that drugs were sold there. Police knew Baling and Dilang resided there, and that they were convicted felons and Trip Set gang members. Police were investigating the Trip Set gang for drug possession, sales, overdoses causing death, and violent crimes. The investigation included 4704 Ellison. Two months before the citizen’s tip, Goa N. Dat, a resident there and brother of Baling and Dilang, was murdered in a shooting. Detective David D. Ullery, a part of the Gang Intelligence Unit, swore that additional assaults and violent crimes followed Goa’s death. Responding to the citizen’s tip, Officer Jerrod Galloway pulled the trash from 4704’s driveway on trash-pickup day, January 21, 2022. Detectives Ullery and Brandon Braun searched the two trash bags, finding: marijuana residue between two cups; a torn-off piece of a ziplock baggie; and four unfired 9 mm bullets stuffed inside two nitrile gloves. The marijuana residue tested positive for THC. 1 The Honorable Brian C. Buescher, United States District Judge for the District of Nebraska. -3-  Based on Detective Ullery’s affidavit, a no-knock search warrant was issued for 4704 Ellison. Five days later, a SWAT team executed it, encountering Baling, Dilang, Jock, and others. In Baling’s room, officers found two firearms (a Glock 23 Gen4 and a Sig Sauer P365), loaded magazines, ammunition, thousands of dollars, and a fanny pack. The fanny pack had 12.8 grams of cocaine, several baggies, and three digital scales with white powder on their surfaces. DNA found on the two firearms matched Baling’s. In Dilang’s room, they found a Ruger-57 handgun, loaded magazines, and ammunition tied off in a nitrile glove. The Ruger-57 had “no fingerprints” and “a very low amount of DNA,” excluding Dilang and Baling as the contributors. At trial, the government used the Ruger-57’s location in Dilang’s room and photos of Dilang handling it to suggest the firearm was wiped. In Jock’s room, they found a loaded Glock 19 Gen4, two boxes of ammunition, magazines, nitrile gloves, and sales records for the Glock 19 and a Glock 43 Gen4. Only one of Jock’s fingerprints was on the Glock 19 despite photo evidence of Dilang handling it. At trial, Nyot M. Pan, the defendants’ friend, testified he bought the Ruger-57 and left it with Jock. The boxes of ammunition contained 5.7x28mm rounds, compatible with only the Ruger-57. One box was missing 25 rounds. One magazine in Dilang’s room was loaded with 21 rounds with the 5.7x28mm headstamp. Police later learned that Jock purchased the Glock 23 found in Baling’s room. Officers seized the defendants’ phones, finding: text messages between the defendants (and others) about buying, possessing, and sharing firearms; images and video of Baling and Dilang with firearms; search histories about firearms and straw purchases; and location data showing Jock purchased firearms. -4-  After an eight-day trial, the jury found Baling guilty of possession with intent to distribute cocaine; possession of a firearm in furtherance of a drug-trafficking crime; and being a felon in possession of a firearm. The district court sentenced him to 195 months in prison. The jury found Dilang guilty of being a felon in possession of a firearm. He was then on supervised release. The district court revoked his supervised release, sentencing him to a total of 144 months in prison. The jury found Jock—a non-felon—guilty of selling or otherwise disposing of a firearm to a felon. The district court sentenced him to 120 months in prison. II. Baling argues that the search warrant lacked probable cause. The Fourth Amendment protects persons and their “houses, papers, and effects against unreasonable searches and seizures” effectuated by the government. U.S. Const. amend. IV. See Bailey v. United States, 568 U.S. 186, 192 (2013) (The Fourth Amendment applies to the states through the Fourteenth Amendment.). Fourth Amendment interests are at their zenith in the home. See Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it comes to the Fourth Amendment, the home is first among equals.”); Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (citation and quotation omitted)). “The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission.” Lange v. California, 594 U.S. 295, 298 (2021). Warrants require probable cause. U.S. Const. amend. IV. Probable cause, however, is “not a high bar.” United States v. Charles, 125 F.4th 904, 910 (8th Cir. 2025), quoting Kaley v. United States, 571 U.S. 320, 338 (2014). -5-  “Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Juneau, 73 F.4th 607, 614 (8th Cir. 2023). For a denial of a motion to suppress, this court “reviews the district court’s factual findings for clear error and legal conclusions de novo.” United States v. Norey, 31 F.4th 631, 635 (8th Cir. 2022). Probable-cause determinations are legal conclusions. United States v. Torres-Lona, 491 F.3d 750, 755 (8th Cir. 2007). “In reviewing whether a warrant was supported by probable cause, our role is to ensure that the issuing judge had a substantial basis for concluding that probable cause existed.” United States v. Tate, 139 F.4th 678, 682 (8th Cir. 2025) (quotation omitted). Here, Detective Ullery’s affidavit provided a substantial basis for probable cause. True, the citizen’s tip, alone, might have been insufficient. See Alabama v. White, 496 U.S. 325, 329 (1990) (“[A]n anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable.’”), discussing Illinois v. Gates, 462 U.S. 213, 237 (1983). Cf. United States v. Wells, 223 F.3d 835, 839–40 (8th Cir. 2000) (finding no probable cause where the anonymous caller “did not report any firsthand information or intimate details,” the caller’s description was “too broad,” and the police were able to corroborate only “innocent details”). However, the police corroborated the tip by conducting a lawful trash-pull search. See California v. Greenwood, 486 U.S. 35, 41–42 (1988) (holding no Fourth Amendment right to privacy in trash left in public areas); United States v. Gabrio, 295 F.3d 880, 882–83 (8th Cir. 2002) (“An informant’s tip can be sufficient to establish probable cause if . . . the tip ‘is corroborated by independent evidence.’”); United States v. Thurmond, 782 F.3d 1042, 1044 (8th Cir. 2015) (“[I]tems found in a trash pull, standing alone, may be sufficient to establish probable cause.”), discussing United States v. Briscoe, 317 F.3d 906, 908 (8th Cir. 2003). -6-  The citizen’s tip and marijuana residue, alone, provided a substantial basis for probable cause. In Briscoe, 40 marijuana seeds and 25 stems from a trash pull, standing alone, sufficiently established probable cause for a residential search warrant. Briscoe, 317 F.3d at 908. While the residue here is less—0.027 grams— it shows recent possession of marijuana (then illegal under both federal and Nebraska law), providing a fair probability that the residence had a larger quantity. Cf. United States v. March, 91 F.4th 975, 976 (8th Cir. 2024) (finding two marijuana stems from a trash pull sufficient to suggest “ongoing marijuana consumption inside the residence”). The marijuana residue coupled with the citizen’s tip sufficiently established probable cause. See United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001) (finding methamphetamine residue from a trash pull with a reliable confidential informant’s tip sufficiently established probable cause for a residential search warrant); United States v. Hohn, 8 F.3d 1301, 1302, 1307 (8th Cir. 1993) (finding drug-related items testing positive for meth from a trash pull with a confidential informant’s tip sufficient to establish probable cause for a residential search warrant). Cf. March, 91 F.4th at 976–77 (finding two marijuana stems from a trash pull and an officer’s statements that firearms were stored at the defendant’s residence sufficient for the Leon good-faith exception to apply). Together with the unfired ammunition in the glove, the torn-off piece of a ziplock baggie (evidence of drug trafficking), the gang-related activity in the area, and Baling’s and Dilang’s felon status, the issuing judge had a substantial basis to find probable cause. See Thurmond, 782 F.3d at 1045 (finding an affidavit established probable cause with the defendant’s prior criminal history, two marijuana roaches, and smoking materials from a trash pull); United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (holding an affidavit established probable cause with the defendant’s prior drug conviction and trash-pull evidence revealing “evidence of illegal drug activity”); United States v. Allebach, 526 F.3d 385, 387 (8th Cir. 2008) (finding an affidavit established probable cause with cocaine residue and drug paraphernalia from a trash pull). The district court did not err in denying Baling’s motion to suppress. -7-  III. Baling argues that the district court abused its discretion in denying his motion for severance. He bases this on evidence admitted against Jock. At trial, the government introduced logs of Jock’s emails to prisoners and his payment to Baling, in order to show Jock knew he was selling or disposing of a firearm to a convicted felon: Baling. These logs indicated that Baling was incarcerated at least 12 days, but showed nothing about the name or nature of his incarceration. Baling claims that Federal Rule of Evidence 403 and Old Chief prohibit this evidence, requiring severance of his trial. Multiple defendants may be tried together “if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b). “There is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). If joinder appears prejudicial, the district court may “sever the defendants’ trials.” Fed. R. Crim. P. 14(a). This court reviews the district court’s denial of a motion for severance for an abuse of discretion. United States v. Warfield, 97 F.3d 1014, 1018 (8th Cir. 1996). A district court can abuse its discretion in denying severance “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539. “Only in an unusual case . . . will the prejudice resulting from a joint trial be substantial enough to outweigh the general efficiency of joinder.” United States v. Huggans, 650 F.3d 1210, 1221 (8th Cir. 2011). To show the “severe or compelling prejudice”—necessary for an abuse of discretion— a defendant must “affirmatively demonstrate that the joint trial prejudiced his right to a fair trial.” Warfield, 97 F.3d at 1018. Because Baling, Dilang, and Jock were “jointly indicted on similar evidence from the same or related events,” Baling must show “something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.” United States v. Oakie, 12 F.3d 1436, 1441 -8- (8th Cir. 1993). Baling must show that “his defense was irreconcilable with that of the codefendant or that the jury was unable to compartmentalize the evidence.” United States v. Casteel, 663 F.3d 1013, 1018 (8th Cir. 2011). Baling can show neither. He fails to demonstrate any prejudice was “substantial enough to outweigh the general efficiency of joinder.” See id. at 1019. The government presented overwhelming evidence to show Baling committed the crimes charged only against him. This independent evidence, not the mention of Baling’s incarceration, supported the jury’s verdict. Even if prejudice existed here, Rule 14 “does not require severance”; “rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.” See Zafiro, 506 U.S. at 538–39. The district court limited any risk of prejudice with its instructions: As you know, there are three defendants in this trial: Baling Dat, Dilang Dat, and Jany Jock. Each defendant is entitled to have his case decided solely on the evidence which applies to him. Some of the evidence in this case may only be considered against fewer than all defendants; you may not consider that evidence against the other defendant or defendants. .... You will hear evidence that multiple defendants were previously convicted of a crime because that is an element of multiple offenses charged in the Superseding Indictment. This evidence, however, does not mean that the defendant committed any of the crimes charged in this case. You may not consider any defendant’s prior conviction as evidence that he committed any of the charged offenses in this case. See id. at 539 (stating limiting instructions “often will suffice to cure any risk of prejudice”). This case is not unusual enough “to outweigh the general efficiency of joinder.” See Huggans, 650 F.3d at 1221; United States v. Davis, 534 F.3d 903, 917 (8th Cir. 2008) (stating an argument that “some of the evidence admissible against one of the defendants was damaging to” the rest “is not enough to require separate trials”); United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996) -9- (“Severance is not required merely because evidence which is admissible only against some defendants may be damaging to others . . . .”). 2 Baling believes that the Old Chief case prohibits the mention of his incarceration. Generally, a criminal defendant may not, through a Rule 403 objection, “stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief v. United States, 519 U.S. 172, 186–87 (1997). Old Chief, however, is a narrow exception: A district court abuses its discretion if it admits evidence of the “name or nature” of the defendant’s prior conviction for the purpose of proving only felon status where the defendant is willing to stipulate to that fact. See id. at 191–92. Baling thinks that, absent joinder, his felon-status stipulation would have foreclosed the mention of his incarceration. See Zafiro, 506 U.S. at 539 (Severe prejudice “might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.”). Old Chief, however, does not apply here because any facts beyond Baling’s felon status were not introduced to prove Baling was a felon, but to show Jock’s mens rea. See United States v. Hill, 249 F.3d 707, 713 (8th Cir. 2001) (stating “the limited rule of Old Chief disappears,” if the defendant’s previous crime is introduced for any reason other than showing his status as a felon). “[A]bsent the unusual circumstance of prior criminal status, the Government is free to offer its evidence as it sees fit.” United States v. Becht, 267 F.3d 767, 774 (8th Cir. 2001). The government’s mention of incarceration is not what Old Chief prohibits. See Old Chief, 519 U.S. at 174, 180. The district court did not abuse its discretion in denying Baling’s motion to sever. 2 Dilang briefly asserts that he was prejudiced by the joint trial. He also fails to affirmatively show severe or compelling prejudice. -10-  IV. The defendants argue that the district court erred in admitting the government’s Exhibit 128, a 78-slide PowerPoint with photos, video, text messages, search histories, and location data from the defendants’ phones. For Baling, Exhibit 128 revealed text messages from February 2020 to October 2021 about the communal sharing of firearms, along with photos of him in nitrile gloves, dual wielding firearms. For Dilang, Exhibit 128 displayed the following text messages he sent from October 2020 to January 2022: • “What you got on the burner we need a good gun case [s__t] go left!”; • “Just pull up. I got a glock on me”; • “Yup! We have to get an apartment & glocks today?”; • “I was just about to order that money bag and buy Bros Glock with the jug money.”; • “I wanna grab this glock tonight but it’s 600 loan me 400 an I’ll give it back Friday?”; • “Loan me 1k I gotchu back Oct. 29th? (You can hold the Glock until I give your money back)”; • “I ain’t going there wit out the pole”;3 • “I gotchu, but I’m lit an i won’t get in traffic without the gun”; 3 Explained at trial as a reference to a “firearm.” -11-  • “I’ll be hitting the gun store then that same location from yesterday.”; • “Can I put my gun up”; • “Can you spot me $500 so I can get this switch for my glock?” Dilang messaged Jock, “This [n___a] Reese sent bread so you can grab the ammo! An this [n___a] Jay sent bread and wants me to put a ticket in for him can you help me?” Other messages revealed Dilang’s involvement in the communal sharing of firearms. The Exhibit’s slides also showed images from Dilang’s phone of firearms, him possessing the Ruger-57 and Glock 19, and using Trip Set gang hand signs. For Jock, Exhibit 128 displayed his messages from July 2020 to January 2022. As discussed, prison communication and payment logs (independent of Exhibit 128) showed that he knew Baling was a prohibited person. Knowing this, Jock messaged Baling, “Ya gonna grab the pole?” Dilang messaged Jock about his parole-mandated drug test, suggesting Jock also knew about his prohibited status. A few months after this text, Dilang messaged Jock, “looks like we buying weapons this weekend.” Other messages highlighted Jock’s part as a purchaser of firearms in the communal- sharing conspiracy. One image from Jock’s phone showed Baling passing a firearm to the photographer. Another showed nitrile gloves in Jock’s room. The Exhibit revealed Jock’s search history, including searches for firearms, drum magazines, and: “How to prove a straw purchase”; “what happens after you buy a gun”; “Straw purchase investigation”; “can police come to home to verify gun is there”; “straw purchase”; and “Straw purchase convictions.” Exhibit 128 also used his location data to show he physically purchased firearms. A. This court reviews the district court’s admission of evidence for an abuse of discretion. United States v. Sorensen, 148 F.4th 992, 996 (8th Cir. 2025). -12-  Defendants argue that the admission of Exhibit 128 violates Federal Rule of Criminal Procedure 16. “Upon a defendant’s request, the government must permit the defendant to inspect . . . documents, data, photographs, . . . or copies or portions of any of these items, if the item is within the government’s possession, custody, or control,” and “the item is material to preparing the defense,” or “the government intends to use the item in its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(E). The night before trial, the government submitted Exhibit 128 to the court and defendants. The government attributed the late submission to working on the Exhibit until the eve of trial, adding it was uncertain if the case was going to trial. The district court, at a hearing, believed the government’s explanation. Excusing the violation of its scheduling order, the district court admitted Exhibit 128 as substantive evidence under Federal Rule of Evidence 1006. The defendants assert that the late submission denied them the opportunity to review content “material to preparing the defense” that the government used “in its case-in-chief at trial.” See id. The district court’s admission of Exhibit 128 did not violate Rule 16. Over two years earlier, the government gave the underlying data to the defendants. While the district court was initially concerned with the late submission, it later stated, “I’m very confident that the attorneys who reviewed the cell phone data would have [seen] these photos and these texts and underst[oo]d that that’s absolutely something the government would focus on.” The district court also found that reviewing Exhibit 128 was not an “onerous task” because each slide showed a Cellebrite link identifying the data’s location in the phones. Importantly, the defendants never moved for a continuance (despite their previous requests for other reasons), vitiating their claim of prejudice. See Patterson v. F.W. Woolworth Co., 786 F.2d 874, 879– 80 (8th Cir. 1986) (“[A]ny claim of prejudice or surprise is vitiated by plaintiffs’ failure to request a continuance.”). The district court did not abuse its discretion in admitting Exhibit 128 over the defendants’ Rule 16 objections. See United States v. Maloney, 102 F.4th 904, 915–16 (8th Cir. 2024). -13-  B. “This court reviews de novo the district court’s interpretation and application of the rules of evidence, and reviews for an abuse of discretion the factual findings supporting its evidentiary ruling.” American Mod. Home Ins. Co. v. Thomas, 993 F.3d 1068, 1071 (8th Cir. 2021). Defendants argue that Exhibit 128 is not a summary under Rule 1006. “The court may admit as evidence a summary, chart, or calculation offered to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court, whether or not they have been introduced into evidence.” Fed. R. Evid. 1006(a). “Summaries are properly admissible when (1) they fairly summarize voluminous trial evidence; (2) they assist the jury in understanding the testimony already introduced; and (3) the witness who prepared it is subject to cross-examination with all documents used to prepare the summary.” United States v. Fechner, 952 F.3d 954, 959 (8th Cir. 2020). “[T]he evidence summarized within it need[] only [] be admissible, not already admitted.” Id. Exhibit 128 is admissible as a summary. The defendants’ phones had several gigabytes of information. The final version of Exhibit 128 compiled relevant and accurate data from the phones, summarizing voluminous evidence. The slides circled certain text messages and search histories. For the text messages, the left side of the slides re-stated the circled texts in a larger font, with the date, sender, and recipient. Other slides had short descriptions for images, or arrows pointing to relevant portions of images. The Exhibit fairly summarized voluminous trial evidence. See United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001) (“A summary may include only evidence favoring one party, so long as the witness does not represent to the jury that he is summarizing all the evidence in the case.”); Wright & Miller, Federal Practice and Procedure § 8044, at 549 (“Since a summary by its very nature leaves out portions of the source material, accuracy in this context is a relative concept. . . . While parties are permitted to provide [a] summary of favorable evidence, the summary should not include argumentative or otherwise -14- unfairly prejudicial matter.”); 2 McCormick on Evidence § 241, at 187 (9th ed.) (“So long as they are accurate, however, such summaries may present only one party’s side of the case.”). Exhibit 128 satisfies the other summary elements. It assisted the jury’s understanding of the underlying conspiracy between the defendants to unlawfully possess and transfer firearms. Testimony about the conspiracy was introduced before Exhibit 128’s admission to the jury. And, Detectives Michael Curd and Kristen Pignotti, who extracted, compiled, and authenticated the phone data, testified at trial and were available for cross-examination. The district court did not abuse its discretion in admitting Exhibit 128 under Rule 1006. See Fechner, 952 F.3d at 959–60 (finding no abuse of discretion in admitting an exhibit summarizing 36 pornographic videos not shown to the jury, providing “the names, the date created, and a brief description”); United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988) (stating “Rule 1006 does not require that it be literally impossible to examine all the underlying records, but only that in-court examination would be an inconvenience”); United States v. Dunnican, 961 F.3d 859, 873 (6th Cir. 2020) (stating “Rule 1006 was designed to govern” scenarios where phone extractions yield a quantity of data “so unwieldy and robust that it would take multiple months . . . for a court to examine”). C. Defendants challenge the district court’s admission of the text messages within Exhibit 128 as co-conspirator statements. While the government here did not charge the defendants with a conspiracy, it presented evidence of one. See United States v. Zackery, 494 F.3d 644, 648 (8th Cir. 2007) (stating co-conspirator statements may be admitted as non-hearsay “even in the absence of a conspiracy charge so long as there is independent evidence of concert of action”). -15-  Hearsay is an out-of-court statement used “to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Under Federal Rule of Evidence 801(d)(2)(E), however, statements “offered against an opposing party” that were “made by the party’s coconspirator during and in furtherance of the conspiracy” are not hearsay. To admit statements under Rule 801(d)(2)(E), the government must “establish by a preponderance of the evidence . . . ‘that there was a conspiracy involving the declarant and the nonoffering party, and the statement was made during the course and in furtherance of the conspiracy.’” United States v. Mayfield, 909 F.3d 956, 960 (8th Cir. 2018), quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987). Procedures set forth in Bell instruct district courts should conditionally admit alleged co-conspirator statements after the defendants invoke Bell in their objection, subject to an on-the-record ruling that the statement is admissible under Rule 801(d)(2)(E). United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). These procedures should “transpire out of the hearing of the jury.” Id. Defendants argue that the district court erred in its factfinding and ultimate decision to admit these statements. “[T]he proper standard is to review the district court’s Rule 801(d)(2)(E) factfinding for clear error, and then review the ultimate decision to admit or exclude the statement for abuse of discretion . . . .” Mayfield, 909 F.3d at 961. Defendants argue that the district court erred in its Rule 801(d)(2)(E) factfinding. They argue that Exhibit 128 failed to show a conspiracy, and that the statements in the Exhibit were the government’s only evidence of a conspiracy. See United States v. Ramirez-Martinez, 6 F.4th 859, 867 (8th Cir. 2021) (“[T]he government must produce independent evidence outside of the statements themselves to establish the existence of the conspiracy. Notably, this ‘independent evidence’ can be ‘completely circumstantial.’” (internal citation omitted)). These arguments fail. Overwhelming evidence inside and independent of Exhibit 128 showed that the defendants conspired to unlawfully possess and transfer firearms. The district court did not clearly err in its factfinding. -16-  Defendants also argue that the district court failed to follow the Bell procedures. This argument fails because (1) the district court complied with Bell, and (2) the defendants were not prejudiced. Before Exhibit 128’s admission, during trial, the district court welcomed the defendants’ objections. The defendants raised several hearsay objections to the text messages. Baling, objecting, argued this was “not a conspiracy case,” and that the government could not use Rule 801(d)(2)(E). The government responded: No. With respect to co-conspirator statements, those can come in. They don’t have to be charged as co-conspirators. They’re still co- conspirator statements and, in fact, the Indictment alleges that in effect. That Jany Jock transferred a firearm to Baling Dat. So whether or not they’re charged in a conspiracy has nothing to do with co-conspirator statements. Despite this, the defendants neither invoked Bell nor requested a Bell ruling. The district court then raised concerns about three slides where the individual in the image was unidentifiable. The government agreed to remove these three slides. The district court continued: [T]he other evidentiary objections that have been made to specific pages, you know, I’m going to overrule them to the extent that the -- that the United States has agreed to withdraw some of the pages. They are going to take those out, . . . and we’ll just tell the jury that due to my ruling some of the pages are out. .... I’m gonna allow the parties to again object once the . . . exhibit is in final after the United States takes out the pages we’ve discussed and any other pages they decide to take out after this discussion . . . . The district court brought back the jury. The trial continued. -17- Later during the trial, the district court revisited its Exhibit-128 ruling, stating: [R]egarding Exhibit 128, the defendants objected to many of the government’s slides. . . . The defendants objected on the grounds of relevance, Rule 403, and Rule 404. The defendants also sought a limiting instruction to the jury to not consider evidence that may be related to a co-defendant when it is unrelated to a certain defendant. I just wanna note from the outset that in the vast majority of trials such as this, some of the evidence in Exhibit 128, along with many other items of evidence that have already been admitted in this case, generally are not needed and may not be offered and may not be properly proffered because in most of these trials that I presided over -- and actually all of them maybe but this one -- the defendants have entered into stipulations that make such -- certain evidence unnecessary. Here, we of course have a couple Old Chief stipulations but we don’t have any other stipulations. And as a result of that, the government has to meet its burden; and the burden it has to meet is -- requires additional evidence that normally doesn’t have to come in so I’m just gonna note that. So given the circumstances here, the government feels compelled and I’m -- I’m compelled to consider evidence that many times doesn’t need -- doesn’t need to be considered and doesn’t need to be put into evidence. .... . . . . Although it would have been optimal if the government had provided the exhibit before the day before trial, there are reasons why they did not. And since it was simply the compilation of evidence already provided, I don’t find any prejudice there anyway. Finally, the last thing I wanna talk about with regard to this. Over the weekend I looked at the exhibits again. . . . [T]he notice of the funeral that was on [slide] 56. I have decided to ask that that slide be removed in addition to the other ones I already stated. -18- The government agreed to remove the slide. The district court concluded: So there’s my -- that’s all I have to say on that. Okay. So given that, that is my ruling. I’ve already spent a lot of court time on this exhibit, and everyone’s had an opportunity to address this issue numerous times so I don’t intend to -- to spend any more time on that so -- but I wanna do ask if there’s anything besides that issue that the -- that we need to address before bringing in this jury and continuing this trial. (emphasis added). Defendants mentioned their previous hearsay objections, which the district court found did not affect its ruling. The defendants still neither invoked Bell nor requested a Bell ruling. The four slides were blacked out. Later, when the government was authenticating the phone extractions, the defendants argued against the government’s use of Rule 801(d)(2)(E), invoking Bell. Responding, the government argued that a conspiracy existed, and stated at the close of its evidence it would request a Bell ruling. The district court admitted the phone extractions, but did not allow them to go to the jury. The district court added: Counsel, one thing that was mentioned in the sidebar is the United States is going to seek to use Federal Rule of Evidence 801(d)(2)(E) as one ground to admit some of the statements that were made in Exhibit 128 which is forthcoming and will be admitted likely unless there’s a problem with -- with its admission that’s not anticipated. . . . . And I will intend to conditionally admit such information subject to a final declaration or final decision under United States v. Bell with regard to that matter. After authentication, the government offered Exhibit 128. The defendants made their Rule 801 objections, which the district court overruled. The district court conditionally admitted Exhibit 128, allowing the government to publish it to the jury. Toward the end of trial, the district court made its Bell ruling. It found Exhibit 128 admissible as non-hearsay: -19-  . . . . Here, the government’s evidence shows by a preponderance of the evidence that the defendants were members of a conspiracy to unlawfully possess and transfer weapons. The out-of-court statements presented by the government in Exhibit 128 were related to the unlawful transfer, receipt, and possession of firearms that were thus “made during the course of and in furtherance of the conspiracy.” Thus, . . . Rule 801(d)(2)(E) applies to the out-of-court statements made by the defendants. Accordingly, these statements are admissible against all defendants. .... . . . . Evidence of other defendants’ possession or transfer of firearms is admissible due to the existence of the conspiracy. As discussed, there is sufficient evidence of an unlawful firearm conspiracy between the defendants, meaning any acts in furtherance of that conspiracy are admissible against the others. . . . However, the government did not present any evidence of a conspiracy to possess or distribute cocaine. Accordingly, the Court will give a limiting instruction as to the cocaine . . . . Since the district court conditionally admitted the statements in Exhibit 128 after Bell’s invocation, and “made an explicit on-the-record ruling that the government had met its burden and that the challenged statements were admissible,” outside the presence of the jury, it complied with the Bell procedures. See United States v. England, 966 F.2d 403, 408 (8th Cir. 1992); United States v. Craig, 94 F.4th 752, 756 (8th Cir. 2024). Cf. United States v. Jorgensen, 144 F.3d 550, 561 (8th Cir. 1998) (“Prosecutors who offer coconspirator statement