United States v. Thomas

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_______________

No. 91-8583 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELLIS RAY THOMAS, A/K/A NUMBER 7, JERRY THOMAS MAXWELL, STEVEN DARREL GREGG, MODESTO SERNA SANCHEZ, JR., A/K/A NUMBER 6, and ROY LEE HODGKISS,

Defendants-Appellants.

__________________________________________________

Appeals from the United States District Court for the Western District of Texas __________________________________________________

(December 21, 1993)

Before WIENER and EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge.

EMILIO M. GARZA, Circuit Judge:

Defendants Ellis Ray Thomas ("Thomas"), Jerry Thomas Maxwell

("Maxwell"), Steven Darrel Gregg ("Gregg"), Modesto Serna Sanchez,

Jr. ("Sanchez"), and Roy Lee Hodgkiss ("Hodgkiss") were jointly

tried before a jury and convicted of various offenses stemming from

a conspiracy to distribute narcotics. Thomas, Maxwell, Gregg, and

Sanchez were convicted of conspiring to possess a controlled

substance with intent to distribute, in violation of 21 U.S.C. §§

* District Judge of the Western District of Louisiana, sitting by designation. 841(a)(1) and 846 (1988). The jury also found Thomas and Sanchez

guilty of possessing a controlled substance with intent to

distribute and aiding and abetting such possession, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Additionally, Sanchez was

found guilty of money laundering and aiding and abetting money

laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2.

Hodgkiss was convicted of engaging in a continuing criminal

enterprise ("CCE"), in violation of 21 U.S.C. § 848(a)(1), and of

using or carrying a machine gun in relation to a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1). All five

defendants now appeal their convictions and sentences. We affirm

in part and reverse and remand in part.

I

From 1986 to 1989, Hodgkiss operated an extensive conspiracy

to distribute cocaine, amphetamine, methamphetamine, and marijuana

in central Texas. Hodgkiss employed many people, including

government witnesses Aaron Clark and Robbie Curtis, to store,

transport, and distribute controlled substances. To facilitate the

purchase and sale of narcotics, and to insulate the conspiracy from

detection by law enforcement personnel, Hodgkiss devised a code

system utilizing digital pagers. Hodgkiss assigned code numbers to

various people,1 types of drugs, and locations where the sales were

1 John Rogala and his associates were "01"; Alan Gardner and his associates were "03"; Sanchez was "06"; Thomas was "07"; Vance Zimmerman was "10"; Wesley Schneider was "13"; Clark was "14"; Curtis was "17"; Keith and Angela Norman were "26"; and Donald Copeland was "333". The government was unable to discover

-2- to be consummated. Customers would contact Hodgkiss to set up a

drug deal. Hodgkiss then would use the pagers to notify his

employees that, for example, person "01" would be waiting at

location "01" to purchase a specified amount of drug "01."

Hodgkiss kept records detailing many of the drug transactions he

arranged.

Hodgkiss obtained the drugs distributed by his retailers from

various sources. John Rogala provided Hodgkiss with much of the

cocaine distributed by the conspiracy, while Alan Gardner sold

large quantities of methamphetamine to Hodgkiss.2 Eventually,

Hodgkiss and Rogala began manufacturing methamphetamine themselves

at a laboratory they established near Smithville, Texas. Hodgkiss

and Rogala also attempted to import large quantities of marijuana

into the United States from Mexico, although they ultimately were

unsuccessful.

An investigation by local and federal authorities led to the

arrests of twenty-nine participants in the Hodgkiss conspiracy,

including the defendants, all of whom were charged in an indictment

alleging a number of drug-related offenses.3 A jury found the five

the identities of "09", "10", and "69". 2 Hodgkiss also arranged purchases of drugs from David LeBoeuf, Joe Reed, Kanetha Childers, Diane Watson, Clyde McCullar, and Billy Basham. 3 On December 14, 1989, agents seized from Hodgkiss's home drug ledgers, a list of code numbers and telephone numbers assigned to Hodgkiss's distributors, a small amount of methamphetamine, over $20,000 in cash, a telephone scrambling device, and firearms. Agents already had seized drug ledgers, methamphetamine, marihuana, and other narcotics from Gregg's home. Agents who searched Sanchez's residence in March 1990 seized a scale of the type commonly used to weigh drugs, a trunk containing marihuana residue, and a telephone scrambling device. Agents searching Maxwell's house seized several

-3- defendants guilty of all charged offenses. The district court then

sentenced Thomas to a prison term of 240 months. Maxwell received

a term of 124 months. Gregg received a 324 month term of

imprisonment. The district court sentenced Sanchez to a prison

term of 240 months, and Hodgkiss to life imprisonment. The

defendants now appeal their convictions and sentences.

II

Joint Claims

A

All five defendants generally argue that the evidence proved

the existence not of the single conspiracy alleged in the

indictment, but of multiple conspiracies. Gregg specifically

argues that there was a "material variance" between the single

conspiracy alleged in the indictment and the multiple conspiracies

proved by the government at trial. A conspiracy is "an agreement

by two or more persons to commit one or more unlawful acts and an

overt act by one of the conspirators in furtherance of the

conspiracy." United States v. Romeros, 600 F.2d 1104, 1106 (5th

Cir. 1979), cert. denied, 444 U.S. 1077, 100 S. Ct. 1025, 62 L. Ed.

2d 759 (1980). A conspiracy conviction must be upheld if any

reasonable trier of fact could find beyond a reasonable doubt that

"a conspiracy existed, that each co-defendant knew of the

conspiracy, and that each co-defendant voluntarily joined it."

United States v. Simmons, 918 F.2d 476, 483-84 (5th Cir. 1990)

hand scales, firearms, and a cocaine grinder.

-4- (internal quotation omitted). "No evidence of overt conduct is

required. A conspiracy agreement may be tacit, and the trier of

fact may infer agreement from circumstantial evidence." United

States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988).

"In general, once an indictment has been returned, its charges

may not be broadened through amendment except by the grand jury."

United States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th

Cir. 1991). A material variance occurs when a variation between

proof and indictment occurs, but does not modify an essential

element of the offense charged. Id. "With variance, our concern

is whether the indictment, assuming it has otherwise alleged the

elements of the offense, has so informed a defendant that he can

prepare his defense without surprise and has protected him against

a second prosecution for the same offenses." United States v.

Cochran, 697 F.2d 600, 604 (5th Cir. 1983). If a material variance

occurs, we determine whether the defendant has been prejudiced by

it using the harmless error analysis. United States v. Lokey, 945

F.2d 825, 832 (5th Cir. 1991).

Whether the evidence, or the reasonable inferences drawn

therefrom, proved one or more conspiracies turns on the following

elements: (1) the time period involved, (2) the persons acting as

co-conspirators, (3) the statutory offenses charged in the

indictment, (4) the nature and scope of the criminal activity, and

(5) the places where the events alleged as the conspiracy took

place. Lokey, 945 F.2d at 831; United States v. Devine, 934 F.2d

-5- 1325, 1333 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct.

954, 117 L. Ed. 2d 120 (1992). Here, the jury was presented with

evidence from which it could reasonably infer that the defendants

were involved in a single conspiracy between 1986 and 1989. For

example, Clark and Curtis both testified that they delivered drugs

at Hodgkiss's direction to Thomas and Sanchez during the relevant

time period. Curtis also testified that he obtained his "job" with

Hodgkiss through Alan Gardner, who often would collect the proceeds

of drug sales from Curtis for Hodgkiss. Moreover, Gardner would

inform Curtis of the pick-up locations for methamphetamine that

Hodgkiss purchased. Additionally, Clark testified that John Rogala

and Patrick Palmer set up the Smithville methamphetamine laboratory

at Hodgkiss's direction and that Rogala brought the methamphetamine

produced at the laboratory to Clark for distribution pursuant to

Hodgkiss's directions. Palmer stated that Rogala introduced him to

Hodgkiss and that Hodgkiss and Rogala jointly reimbursed him for

expenses he incurred while leasing the Smithville property. Edward

Crawford, who oversaw the manufacture of methamphetamine for

Hodgkiss, testified that he was paid for his services by Hodgkiss

through Gardner. Donald Copeland testified that Rogala and

Hodgkiss attempted to smuggle a large quantity of marijuana into

the United States from Mexico. Gardner testified that he often

purchased narcotics from Hodgkiss and that Hodgkiss knew Gardner

would be distributing the drugs to others, including Maxwell.

Richard Townsen, one of Rogala's employees, testified that Gregg

-6- delivered up to fifteen kilograms of cocaine to him, many of which

Rogala then delivered to Hodgkiss. Finally, Norman Allanson

testified that Gregg transported fifteen kilograms of cocaine that

Rogala had purchased from Florida to Texas.

Nonetheless, the defendants assert that because they did not

know the identity of other members of the Hodgkiss conspiracy, they

could not be guilty of conspiring with them. However, a jury may

find a defendant guilty of conspiring with unknown persons where a

sufficient overlap of personnel occurs))i.e., "if a pivotal figure,

such as [Hodgkiss], directs and organizes the illegal activity, and

has extensive dealings with each of the parties." Lokey, 945 F.2d

at 833. Thus, "[p]arties who knowingly participate with core

conspirators to achieve a common goal may be members of an overall

conspiracy," even in the absence of contact with other

conspirators. United States v. Richerson, 833 F.2d 1147, 1154 (5th

Cir. 1987) (internal quotation omitted). Therefore, as noted, the

jury's conclusion that Hodgkiss, Gregg, Sanchez, Thomas, and

Maxwell were co-conspirators was reasonable in light of the

evidence presented at trial.

Moreover, the jury reasonably could have inferred from the

evidence that the defendants had a common goal of distributing

illegal drugs for profit, that they knew they were part of a larger

venture, and that the activities of each conspirator were

advantageous to the success of the overall venture:

Where the activities of one aspect of the scheme are necessary or advantageous to the success of another

-7- aspect of the scheme or to the overall success of the venture, where there are several parts inherent in a larger common plan, or where the character of the property involved or nature of the activity is such that knowledge on the part of one member concerning the existence and function of other members of the same scheme is necessarily implied due to the overlapping nature of the various roles of the participants, the existence of a single conspiracy will be inferred.

United States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982). "[I]n

many narcotics distribution networks the ultimate retailers may not

know the identities of those who supply their wholesaler, and the

retailers' identities may be unknown to those suppliers; but all

are well aware that they are participating in a collective

venture." Lokey, 945 F.2d at 831 (internal quotation omitted).

The jury reasonably could have found that the defendants were part

of a single conspiracy: Gregg as a supplier, Hodgkiss as a

wholesaler, and Thomas, Maxwell, and Sanchez as retailers. Thus,

we find that the jury convicted the defendants only of the single

conspiracy charged, not the multiple conspiracies defendants allege

existed.4

4 In fact, the district court specifically instructed the jury that [i]f you find that the conspiracy charged did not exist, then you must return a not guilty verdict as to each Defendant . . . , even though you find that some other conspiracy or conspiracies existed. If you find that a defendant was not a member of the conspiracy charged in the indictment, then you must find that Defendant not guilty, even though the Defendant may have been a member of some other conspiracy.

This instruction, which substantially tracks our Pattern Jury Instructions, does not permit the jury to convict the defendants for crimes not charged in the indictment. See Zafiro v. United States, ___ U.S. ___, 113 S. Ct. 933, 939, 122 L. Ed. 2d 317 (1993) (noting that "`juries are presumed to follow their instructions'") (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176 (1987)).

-8- Finally, even if the evidence did prove the existence of

multiple conspiracies, the defendants, to obtain reversal, still

must demonstrate that the variance affected their substantial

rights. Here, we find that the indictment sufficiently informed

the defendants of the offenses charged and that they were not

surprised at trial. See Cochran, 697 F.2d at 604. Nor were the

convictions based upon a "set of facts distinctly different from

that set forth in the indictment." United States v. Chandler, 858

F.2d 254, 257 (5th Cir. 1988) (internal quotation omitted).

Accordingly, if any material variance occurred, we find that it was

harmless error. See Lokey, 945 F.2d at 834; see also United States

v. Jackson, 978 F.2d 903, 911 (5th Cir. 1992) ("[W]hen the

indictment alleges the conspiracy count as a single conspiracy, but

the `government proves multiple conspiracies and a defendant's

involvement in at least one of them, then clearly there is no

variance affecting that defendant's substantial rights.'")

(citation omitted), cert. denied, ___ U.S. ___, 113 S. Ct. 2429,

124 L. Ed. 2d 649 (1993).

B

The defendants contend that the evidence was insufficient to

support their respective convictions for various drug-related

offenses. However, they failed to move for a judgment of acquittal

at the close of their cases.5 Accordingly, we restrict our review

5 Maxwell and Gregg moved for a judgment of acquittal at the close of the government's case, but not at the close of their cases.

-9- of their claims to whether their convictions resulted in a manifest

miscarriage of justice. United States v. Vaquero, 997 F.2d 78, 82

(5th Cir.), petition for cert. filed (1993); United States v.

Galvan, 949 F.2d 777, 782 (5th Cir. 1991). "Such a miscarriage

would exist only if the record is devoid of evidence pointing to

guilt, or . . . [if] the evidence on a key element of the offense

was so tenuous that a conviction would be shocking." Galvan, 949

F.2d at 782-83 (citations omitted). "In making this determination,

the evidence, as with the regular standard for review of

insufficiency of evidence claims, must be considered `in the light

most favorable to the government, giving the government the benefit

of all reasonable inferences and credibility choices.'" United

States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988) (quoting

Hernandez-Palacios, 838 F.2d at 1348). Moreover, "[o]nly slight

evidence is needed to connect an individual to an illegal

conspiracy once the [government] has produced evidence of that

conspiracy." Vaquero, 997 F.2d at 82.

Maxwell contends that the evidence is insufficient to support

his conviction for conspiracy to possess controlled substances with

intent to distribute. However, Alan Gardner))who at one time

supplied Hodgkiss with drugs but later began purchasing drugs at

wholesale prices from Hodgkiss))testified that he began selling

cocaine to Maxwell in March 1988. Gardner stated that although

Maxwell usually purchased two ounces of uncut cocaine every other

-10- week, Maxwell on occasion would order up to four ounces. Moreover,

Gardner normally "fronted"6 the cocaine to Maxwell. Gardner

employee Charles Barton corroborated Gardner's testimony. Ronald

McWilliams, who at one time supplied cocaine to Maxwell, testified

that he purchased cocaine from Maxwell on two occasions in 1989.

The jury could have concluded from this evidence that Maxwell

was a member of the Hodgkiss conspiracy. Maxwell received uncut

cocaine from Gardner, who purchased cocaine from Hodgkiss with

Hodgkiss's knowledge that the cocaine would be resold. Moreover,

Gardner also fronted the cocaine to Maxwell, allowing the jury to

infer that Maxwell was acting as a retailer of the cocaine. This

inference is supported by the testimony of McWilliams, who stated

that he purchased cocaine from Maxwell on two occasions.

Accordingly, Maxwell's conviction did not result in a manifest

miscarriage of justice.

Gregg also argues that the evidence did not support his

conviction for conspiracy to possess with intent to distribute.

However, Richard Townsen, who worked for Rogala, testified that on

several occasions Gregg delivered multiple kilograms of cocaine to

6 "The term `fronted' refers to a transfer of drugs in which one person transfers the drugs to a second person in return for the second person's promise to pay the sales price within a few days." United States v. Alfaro, 919 F.2d 962, 963 (5th Cir. 1990); see also United States v. Chase, 838 F.2d 743, 746 (5th Cir.) (defining "fronted" to mean "delivered on consignment"), cert. denied, 486 U.S. 1035, 108 S. Ct. 2022, 100 L. Ed. 2d 609 (1988). Thus, the jury may reasonably infer that if a person has been fronted drugs, that person likely is a dealer who intends to sell all or a portion of the drugs in order to pay the drug supplier.

-11- him that had been purchased by Rogala. Pursuant to instructions

from Rogala, Townsen would park his truck at a specified location

and then "disappear" for a couple of hours. Gregg, who obtained

the keys to Townsen's truck from Rogala, would place the cocaine in

the truck during Townsen's absence. Norman Allanson testified that

he sold cocaine to Rogala and Grey Hayes.7 On one occasion, Gregg

transported eight kilograms of cocaine from Florida to Texas for

Rogala. On a second occasion, Gregg transported seven kilograms

from Florida to Texas for Rogala. On a third occasion, Gregg

transported a sizable quantity of marijuana to Florida, picked up

five kilograms of cocaine from Allanson, but sold some of the

cocaine in Florida when he was not able to sell the marijuana.

Consequently, viewing the evidence in the light most favorable to

the government, Gregg's conviction did not result in a manifest

miscarriage of justice. See United States v. Greenwood, 974 F.2d

1449, 1457 (5th Cir. 1992) (noting that "common sense dictates that

someone ultimately would be responsible for distributing the

various . . . loads of marijuana which [the defendant] had helped

smuggle into the United States"), cert. denied, ___ U.S. ___, 113

S. Ct. 2354, 124 L. Ed. 2d 262 (1993); United States v. Pineda-

Ortuno, 952 F.2d 98, 102 (5th Cir.) (noting that intent to

distribute may be inferred from the fact that the defendant

possessed "a larger quantity of cocaine than an ordinary user would

7 Townsen testified that Grey Hayes and Gregg were "partners" and that Rogala purchased cocaine from Hayes. Allanson stated that he had been selling cocaine to Gregg and Hayes for approximately ten years before his arrest.

-12- possess for personal consumption"), cert. denied, ___ U.S. ___, 112

S. Ct. 1990, 118 L. Ed. 2d 587 (1992).

Thomas contends that the evidence was insufficient to support

his conspiracy conviction. Curtis, however, testified that while

he worked for Hodgkiss, he delivered one to two ounce quantities of

controlled substances to Thomas twice a week. Clark testified

that, pursuant to instructions given to him by Hodgkiss, he gave

both drugs and records of drug sales to Thomas for delivery to

Hodgkiss. Moreover, Clark stated that he delivered controlled

substances to Thomas on several occasions, and Hodgkiss assigned a

code number to Thomas to facilitate the distribution of narcotics.8

As with Gregg, we find that this evidence is sufficient to support

Thomas's conviction for conspiring to possess a controlled

substance with intent to distribute.

Sanchez contends that the evidence was insufficient to support

his conviction for money laundering, in violation of 18 U.S.C.

§ 1956. To establish a violation of this section, the government

must prove that Sanchez (1) knowingly conducted a financial

8 Thomas further argues that the government did not establish the identity of "07" because the government's "entire case was based on circumstantial evidence." However, the government may use circumstantial evidence to establish the identity of a conspirator. See Hernandez-Palacios, 838 F.2d at 1348 (allowing the jury to infer that a defendant voluntarily joined a conspiracy from circumstantial evidence). Moreover, Clark testified that Thomas was "07" and Curtis testified that he delivered cocaine to Thomas on a regular basis. Thus, the evidence supports the jury's finding that Thomas was "07."

-13- transaction9 (2) that involved the proceeds of an unlawful activity

(3) with the intent to promote or further that unlawful activity.

United States v. Salazar, 958 F.2d 1285, 1293 (5th Cir.), cert.

denied, ___ U.S. ___, 113 S. Ct. 185, 121 L. Ed. 2d 129 (1992).

Sanchez argues that the evidence supporting his conviction is

insufficient because it consists only of "government agents piecing

together some written materials seized during drug raids which

materials purportedly referenced [Sanchez] selling marijuana to

someone unknown in the Hodgkiss organization." We disagree.

Clark testified that Sanchez, whose code number was "06,"

delivered ten to fifteen pound quantities of marijuana to Clark

"more than once." Clark stated that these transactions would be

reflected in the drug ledgers seized from his residence. Officer

Philip Steen testified that Clark's drug ledgers showed that Clark

received fifteen pounds of marijuana from and paid $8,800 to

Sanchez in March 1988. Steen also stated that a similar sale

occurred in April 1988 and that Sanchez was paid with money derived

from drug sales. As Clark was a member of the Hodgkiss conspiracy

and the drug ledgers reflected the movement of drug proceeds from

Clark to Sanchez, the evidence supports the jury's conclusion that

Sanchez was guilty of money laundering.

9 A "financial transaction" is defined as "the movement of funds by wire or other means or . . . one or more monetary instruments" that "in any way or degree affects interstate or foreign commerce." 18 U.S.C. § 1956(c)(4).

-14- 5

Hodgkiss first argues that the evidence is insufficient to

support his conviction for engaging in a CCE, in violation of 21

U.S.C. § 848, because he did not organize, supervise, or otherwise

manage five participants in his drug-trafficking conspiracy.10

Hodgkiss, however, admits in his brief that he supervised three

persons)) Aaron Clark, Robbie Curtis, and Gina Raven, Hodgkiss's

girlfriend.11 Thus, the question before us is whether the evidence

supports a finding that Hodgkiss supervised two additional

participants in the conspiracy.

Edward Crawford, who has a doctorate in chemistry, testified

that, for the sum of $25,000, he manufactured methamphetamine for

Hodgkiss and, at Hodgkiss's direction, instructed two other

persons))"Jake" and Patrick Palmer))"in the art and science of

manufacturing methamphetamine." Crawford, Jake, and Palmer used

chemicals obtained from Wesley Schneider to produce approximately

10 Section 848(c) provides that a person engages in a CCE if: (1) he violates any provision of [title 21] the punishment for which is a felony, and (2) such violation is part of a continuing series of violations of [title 21])) (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources. 11 Hodgkiss conceded at oral argument that he "probably" supervised a fourth person))Edward Crawford.

-15- twenty-four pounds of methamphetamine at a "meth lab" near

Smithville, Texas. Thus, the jury reasonably could infer from

Crawford's testimony that Hodgkiss directed Crawford, Jake, and

Palmer.12 Consequently, examining the evidence in the light most

favorable to the government and giving the government the benefit

of all reasonable inferences and credibility choices, we find that

Hodgkiss managed at least five persons within the meaning of the

statute.13

Hodgkiss also appeals his conviction for using or carrying a

machine gun in relation to a drug trafficking offense, in violation

of 18 U.S.C. § 924(c)(1).14 Hodgkiss argues that the firearm

12 Moreover, Palmer testified that Hodgkiss directed him to find a suitable location for a methamphetamine lab. Palmer then found the Smithville site, leased it in his own name with his own funds, and subsequently was reimbursed by John Rogala and Hodgkiss. After Crawford and Palmer manufactured one batch of methamphetamine, Hodgkiss instructed Palmer to place the remaining chemicals and lab equipment in storage. 13 Because we find that Hodgkiss organized, supervised, or managed Crawford and Palmer, we need not discuss whether Hodgkiss managed anyone else. However, we note that substantial evidence indicates that Hodgkiss likely managed several other persons at various times during the conspiracy's existence. See United States v. Phillips, 664 F.2d 971, 1034 (5th Cir. Unit B 1981) (noting that "the requisite five persons need not have acted in concert at the same time"), cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982). 14 This section provides that [w]hoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced . . . if the firearm is a machine gun . . . to imprisonment for thirty years. 18 U.S.C. § 924(c)(1). "The term `machinegun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b).

-16- alleged by the government to be a machine gun actually was not such

a weapon, that he did not "use or carry" the machine gun within the

meaning of the statute, and that the district court erred in not

granting a judgment of acquittal on the machine gun count. We

disagree with all three contentions.

(i)

Hodgkiss initially argues that the AR-15 rifle found in his

house by government agents was not a machine gun within the meaning

of § 924(c)(1). However, two expert witnesses))Bureau of Alcohol,

Tobacco, and Firearms agents Davy Aguilera and Geoffrey

Descheemaeker))testified that the weapon had been altered to fire

as a machine gun. Thus, the evidence sufficiently supported the

jury's conclusion that the weapon at issue was a machine gun.15 See

Greenwood, 974 F.2d at 1458 ("Assessing the credibility of

witnesses . . . is the exclusive province of the jury.").

(ii)

Hodgkiss next contends that he did not "use or carry" the

firearm within the meaning of the statute because the machine gun

was unloaded and stored in a zippered gun bag in a second-floor

closet. The presence of firearms at the home of a defendant where

drugs, money, and ammunition are also found, however, is sufficient

to establish the "use" of a firearm as an integral part of a drug-

trafficking crime in violation of § 924(c). See United States v.

15 Interestingly, Hodgkiss's attorney conceded during closing argument that the weapon was a machine gun: "I started out trying to downplay the fact that it was a machine gun. But after [Descheemaeker] got on, I just))he just backed me down. I))it's a machine gun, I give up."

-17- Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988). "The fact that a

weapon is `unloaded' or `inoperable' does not insulate the

defendant from the reach of section 924(c)(1)." United States v.

Contreras, 950 F.2d 232, 241 (5th Cir. 1991), cert. denied, ___

U.S. ___, 112 S. Ct. 2276, 119 L. Ed. 2d 202 (1992); see also Reed

v. Butler, 866 F.2d 128 (5th Cir.) (discussing the dangerousness of

unloaded or inoperable firearms), cert. denied, 490 U.S. 1050, 109

S. Ct. 1963, 104 L. Ed. 2d 431 (1989). "Moreover, this Court has

held that the Government is only obliged to show that the firearm

was available to provide protection to the defendant in connection

with his engagement in drug trafficking; a showing that the weapon

was used, handled or brandished in an affirmative manner is not

required." United States v. Molinar-Apodaca, 889 F.2d 1417, 1424

(5th Cir. 1989); see also United States v. Blake, 941 F.2d 334,

342 (5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 596,

121 L. Ed. 2d 533 (1992).

Agents seized from Hodgkiss's house the machine gun,

ammunition for it, other firearms, coded drug ledgers, a small

amount of methamphetamine, and over $20,000 in cash. Don Howell,

the stepfather of Hodgkiss's girlfriend, Gina Raven, testified that

Hodgkiss on one occasion stated that he needed the weapon for

protection because of "his line of business."16 See United States

v. Martinez, 808 F.2d 1050, 1057 (5th Cir.) ("Firearms are `tools

16 Hodgkiss previously told Howell that "his business" involved supplying money to people for drug deals.

-18- of the trade' of those engaged in illegal drug activities."), cert.

denied, 481 U.S. 1032, 107 S. Ct. 1962, 95 L. Ed. 2d 533 (1987).

Based upon the record evidence, the jury was entitled to conclude

based that Hodgkiss used the machine gun in relation to a drug-

trafficking offense. See, e.g., United States v. Capote-Capote,

946 F.2d 1100, 1104 (5th Cir. 1991) (machine gun found with a

loaded clip beside it in a closed drawer of a chest on the second

floor of an apartment facilitated a drug transaction), cert.

denied, ___ U.S. ___, 112 S. Ct. 2278, 119 L. Ed. 2d 204 (1992);

United States v. Coburn, 876 F.2d 372, 375 (5th Cir. 1989)

(unloaded shotgun in gun rack of vehicle containing marijuana

violated § 924(c) even though no shells were found in the vehicle).

(iii)

Hodgkiss finally contends that the district erred in denying

his post-trial motion for a judgment of acquittal on the machine

gun count, which defined the predicate drug trafficking crime

required by § 924(c) to be the conspiracy alleged in count two of

the indictment. Hodgkiss argues that because he was acquitted of

the conspiracy upon which the § 924(c) violation was predicated, he

could not have been guilty of a § 924(c) violation.17

Hodgkiss misinterprets the requirements of § 924(c). "[T]here

is no statutory requirement that the government secure an

17 Although the jury found Hodgkiss guilty of the conspiracy alleged in count two, the district court entered a judgment of acquittal on that count because the jury also found Hodgkiss guilty of engaging in a continuing criminal enterprise, of which conspiracy is a lesser-included offense. See Devine, 934 F.2d at 1342 (noting that "a § 846 conspiracy is a lesser-included offense of a § 848 continuing criminal enterprise").

-19- underlying drug-trafficking conviction as a predicate for invoking

section 924(c)(1)." United States v. Munoz-Fabela, 896 F.2d 908,

909 (5th Cir.), cert. denied, 498 U.S. 824, 111 S. Ct. 76, 112 L.

Ed. 2d 49 (1990). Instead, "it is only the fact of the offense,

and not a conviction, that is needed to establish the required

predicate." Id. at 911; see also United States v. Ruiz, 986 F.2d

905, 911 (5th Cir.) (acquittal on the predicate count does not

preclude a conviction under § 924(c) if a reasonable jury could

have found the defendant guilty of the predicate act), cert.

denied, ___ U.S. ___, 114 S. Ct. 145, 126 L. Ed. 2d 107 (1993).

Thus, the jury's finding that Hodgkiss engaged in a conspiracy to

distribute illegal drugs qualifies as a drug-trafficking offense

under § 924(c), and is more than sufficient to support Hodgkiss's

conviction. Accordingly, the district court did not err in

refusing to enter a judgment of acquittal.

C

Sanchez and Hodgkiss contend that the district court erred in

denying their motions for severance under Fed. R. Crim. P. 14.

Sanchez contends that he was entitled to a severance because he had

only a minimal involvement in the conspiracy, the jury was "simply

overwhelmed" by the volume of evidence, and evidence admissible

against other defendants was inadmissible as to him. Hodgkiss

argues that he was entitled to severance because evidence was

admissible against other defendants but inadmissible against him

-20- and his defense strategy conflicted with that of at least one of

his co-defendants.18

Denial of a motion for severance is reviewable only for an

abuse of discretion. Zafiro v. United States, ___ U.S. ___, 113 S.

Ct. 933, 939, 122 L. Ed. 2d 317 (1993); United States v. Arzola-

Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933,

110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). "Reversal is warranted

only when the [defendant] can demonstrate compelling prejudice

against which the trial court was unable to afford protection."

Arzola-Amaya, 867 F.2d at 1516. "The rule, rather than the

exception, is that persons indicted together should be tried

together, especially in conspiracy cases." United States v.

Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied, ___ U.S. ___,

114 S. Ct. 266, 126 L. Ed. 2d 218 (1993). Accordingly, a

quantitative disparity in the evidence "is clearly insufficient in

itself to justify severance." United States v. Harrelson, 754 F.2d

1153, 1175 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S. Ct. 599,

88 L. Ed. 2d 578 (1985). Moreover, "the mere presence of a

spillover effect does not ordinarily warrant severance." United

States v. Sparks, 2 F.3d 574, 583 (5th Cir. 1993). Finally,

18 Sanchez and Hodgkiss further allege that the indictment incorrectly charged a single conspiracy, thus demonstrating that joinder was initially incorrect under Fed. R. Crim. P. 8(b). In such cases, the defendants, to obtain a reversal of their convictions, need only establish that the misjoinder resulted in "actual prejudice." United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986). However, we already have found that the evidence supported the jury's verdict that a single conspiracy existed. See part II.A. supra. Consequently, the Lane test is inapplicable. See also United States v. Piaget, 915 F.2d 138, 142 (5th Cir. 1990) (stating that Rule 8(b) "is to be broadly construed in favor of initial joinder").

-21- severance is not required merely because co-defendants present

mutually antagonistic defenses: "Rule 14 leaves the determination

of risk of prejudice and any remedy that may be necessary to the

sound discretion of the district court." Zafiro, 113 S. Ct. at

938-39.

In this case, the government offered sufficient evidence

demonstrating that Sanchez and Hodgkiss were guilty of the crimes

charged. See parts II.B.4 and .5 supra. Moreover, even if some

risk of prejudice existed, the district court properly instructed

the jury to limit evidence to the appropriate defendant,19 and

"`juries are presumed to follow their instructions.'" Zafiro, 113

S. Ct. at 939 (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107

S. Ct. 1702, 1708, 95 L. Ed. 2d 176 (1987)). Sanchez and Hodgkiss

provide no sound reason for departing from this principle. Because

Sanchez and Hodgkiss did not suffer compelling prejudice against

which the district court was unable to afford protection, the

district court did not abuse its discretion in refusing to sever

their cases.

19 In addition to the multiple conspiracy instruction, see note 4 supra, the district court gave the following instruction: In determining whether a Defendant was a member of the alleged conspiracy, . . . you should consider only the evidence, if any, pertaining to his own acts and statements. He is not responsible for the acts or declarations of other alleged participants until it is established beyond a reasonable doubt first that a conspiracy existed, and second, that the Defendant was one of the members.

The district court also instructed the jury that the defendants were not "on trial for any act, conduct or offense or offenses not alleged in the superseding indictment."

-22- D

Sanchez and Hodgkiss next contend that the district court's

denial of their requests for production of notes prepared by

federal agents who debriefed several plea-bargaining defendants

violated both the Jencks Act, 18 U.S.C. § 3500,20 and the Supreme

Court's holding in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.

1194, 1196-97, 10 L. Ed. 2d 215 (1963).21 The government contends

that the debriefing notes are neither Jencks Act nor Brady

material.

Under the Jencks Act, a "statement" is (1) a written statement

signed or otherwise adopted or approved by the witness, or (2) a

"substantially verbatim recital" of an oral statement made by the

witness. 18 U.S.C. § 3500; United States v. Pierce, 893 F.2d 669,

675 (5th Cir. 1990). An agent's interview notes thus are not

"statements" of the witnesses interviewed unless the witnesses

"signed, read, or heard the entire document read." Pierce, 893

F.2d at 675. Although the defendants thoroughly cross-examined

20 This section provides in relevant part: (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. 21 In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S. Ct. at 1196- 97.

-23- each of the government witnesses, they were unable to produce any

evidence that one of these three conditions was met. See id.

Similarly, there is no evidence that any portion of the notes was

a substantially verbatim transcription of the witness's statements.

Thus, the notes are not discoverable under the Jencks Act as

statements of the plea-bargaining defendants.22 United States v.

Mora, 994 F.2d 1129, 1138 (5th Cir.), cert. denied, ___ U.S. ___,

___ S. Ct. ___ (1993); United States v. Ramirez, 954 F.2d 1035,

1038 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 3010, 120

L. Ed. 2d 884 (1992).

The defendants also contend that the notes constitute Brady

material because they contain either exculpatory evidence or

evidence useful for impeachment purposes. Prior to trial, the

defendants requested from the government any Brady evidence. The

district court denied their motions as moot in light of the

government's assurances that all Jencks and Brady material would be

produced. During trial, however, the defendants discovered that

the government failed to produce the notes made by agents during

debriefing sessions with the plea-bargaining defendants. The

government contends that the debriefing notes did not have to be

produced because they contained no exculpatory or otherwise useful

information. The record is unclear as to whether the district

22 Although the district court addressed the issue whether the notes constituted Jencks Act statements of the plea-bargaining defendants, the court did not discuss whether the notes constituted Jencks Act statements of the testifying agents. See note 25 infra.

-24- court reviewed in camera all or just a portion of the notes sought

by the defendants.23 Moreover, the record is unclear as to the

exact findings of the district court regarding the material

reviewed in camera by the court.24

Accordingly, rather than determine ourselves whether the

government should have produced the notes pursuant to the Brady

doctrine))i.e., whether the notes contain evidence material either

to guilt or punishment))we remand this matter to permit the

district court to make such a determination in the first instance.

United States v. Gaston, 608 F.2d 607, 614 (5th Cir. 1979); see

also United States v. Welch, 810 F.2d 485, 491 (5th Cir. 1987)

(similar remedy with respect to Jencks Act); United States v.

Hogan, 763 F.2d 697, 704 (5th Cir. 1985) (same). If the district

court concludes that the notes need not have been produced, it

should supplement the record with the notes and with sufficiently

detailed findings to enable us to review the decision. Welch, 810

23 The government contends that the district court reviewed all debriefing notes prepared by government agents. The record, however, indicates that the government produced only two sets of notes))one for the debriefing sessions of Alan Gardner and one for witness Don Howell. Moreover, only the notes related to Gardner are included in the record on appeal. 24 The district court reviewed in camera the notes from Gardner's debriefing sessions. The court then denied Maxwell's motion for production of the notes, thereby implying that the notes contained no Brady material. However, in denying Maxwell's motion, the court remarked that "to say there is no exculpatory or Brady material in that would be to engage in severe overstatement." (Emphasis added). While the district court may have merely misstated his conclusion, the exact import of its ruling is unclear in these circumstances.

-25- F.2d at 491; Gaston, 608 F.2d at 614. If the defendants contest

the district court's findings, they need not file a new appeal.

"They may, instead, lodge with this court certified copies of the

trial court's findings and, if needed, supplementary briefs or

other materials. This matter will be referred to this panel."

Welch, 810 F.2d at 491. If the district court concludes that any

portion of the notes should have been produced, it then should

determine whether the government's failure to furnish the notes

amounts to a due process violation))i.e., whether "there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different."

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,

87 L. Ed. 2d 481 (1985). Unless the district court is persuaded

that the result of the proceeding would not have been different, it

should vacate the judgment of conviction and grant a new trial.25

Welch, 810 F.2d at 491; Gaston, 608 F.2d at 614.

III

Jerry Thomas Maxwell

Maxwell contends that the trial judge should have given to the

jury the "buyer-seller" instruction that he requested. This

25 Because we remand this matter the district court, we need not address the defendants' additional contention that the notes constitute Jencks Act statements of the testifying agents. Notes taken by an agent during witness interviews can constitute statements of the agent under the Jencks Act, even if the notes do not constitute statements of the witnesses. See United States v. Sink, 586 F.2d 1041, 1051 (5th Cir. 1978) (finding an agent's report, prepared from his notes and recollections from witness interviews, to be a statement of the agent), cert. denied, 443 U.S. 912, 99 S. Ct. 3102, 61 L. Ed. 2d 876 (1979). The government did not brief, and the district court did not address, this claim. On remand, the district court also should evaluate this claim.

-26- instruction, apparently based on United States v. Hughes, 817 F.2d

268, 273 (5th Cir.), cert. denied, 484 U.S. 858, 108 S. Ct. 170, 98

L. Ed. 2d 124 (1987), directed the jury to acquit Maxwell if they

believed that he received cocaine "for his own personal use and not

to facilitate the conspiracy or because he was a member of the

conspiracy." The government argues that the essence of Maxwell's

proposed instruction was substantially covered by the charge

actually given to the jury. We agree.

The district court's refusal to give a requested instruction

is reviewed for an abuse of discretion. United States v. Sellers,

926 F.2d 410, 414 (5th Cir. 1991). Under this standard of review,

the district court has "substantial latitude in tailoring

instructions so long as they fairly and adequately cover the issues

presented," United States v. Pool, 660 F.2d 547, 558 (5th Cir. Unit

B Nov. 1981), and is "under no obligation to give a requested

instruction that misstates the law, is argumentative, or has been

adequately covered by other instructions." United States v.

L'Hoste, 609 F.2d 796, 805 (5th Cir.), cert. denied, 449 U.S. 833,

101 S. Ct. 104, 66 L. Ed. 2d 39 (1980).

"While it is true that a buyer-seller relationship, without

more, will not prove a conspiracy, evidence of such activity goes

to whether the defendant intended to join in the conspiracy or

whether his or her participation was more limited in nature."

United States v. Maserati, 1 F.3d 330, 336 (5th Cir. 1993).

Accordingly, the drug conspiracy laws focus exclusively on the

-27- question "whether the participants knowingly joined an agreement to

distribute drugs in violation of the law." Id. Therefore, if the

evidence demonstrates only that someone purchased drugs from the

conspiracy and did not agree to join it, "the elements necessary to

prove a conspiracy would be lacking, and a not guilty verdict would

result." Id. In this case, the district court, using our Pattern

Jury Charge, accurately instructed the jury on the law of

conspiracy, and the jury found Maxwell guilty of conspiring to

distribute drugs. Thus, the jury, by rendering a guilty verdict,

specifically found that Maxwell agreed to join the conspiracy. We

therefore find that Maxwell's theory was adequately covered by the

instructions, and the district court did not abuse its discretion

in refusing to give the requested instruction. See id.; L'Hoste,

609 F.2d at 805.26

IV

Steven Darrel Gregg

Gregg argues that the district court incorrectly denied his

motion to suppress evidence seized during the search of an

automobile he was driving. Gregg contends that the police officer

who searched the vehicle lacked probable cause to do so, thus

26 Hodgkiss argues that the district court erred in refusing to instruct the jury that they had to unanimously agree on the identity of the five individuals whom Hodgkiss managed as part of the CCE. However, as Hodgkiss noted at oral argument, the jury need not unanimously agree on the identities of the five individuals. United States v. Linn, 889 F.2d 1369, 1374 (5th Cir. 1989), cert. denied, 498 U.S. 809, 111 S. Ct. 43, 112 L. Ed. 2d 19 (1990). The district court thus did not abuse its discretion in rejecting the proposed instruction.

-28- making the seized evidence the fruit of an illegal search. The

government argues that the officer had probable cause to search the

vehicle and that Gregg abandoned the bag in which the officer found

the contraband, thereby barring Gregg from challenging the legality

of the search.

"In reviewing a district court's ruling on a motion to

suppress evidence based on testimony at a suppression hearing, we

must accept the district court's factual findings unless they are

clearly erroneous or are influenced by an incorrect view of the

law." United States v. Garcia, 849 F.2d 917, 917 n.1 (5th Cir.

1988). "Further, we must view the evidence in the light most

favorable to the party that prevailed below." Id. However, we

review de novo the ultimate conclusion drawn from the district

court's factual finding. United States v. Diaz, 977 F.2d 163, 164

(5th Cir. 1992).

The Fourth Amendment provides that "the right of the people to

be secure in their persons, houses, papers, and effect, against

unreasonable searches and seizures shall not be violated."

Evidence obtained by the government in violation of a defendant's

Fourth Amendment rights may not be used to prove the defendant's

guilt at trial. Weeks v. United States, 232 U.S. 383, 398, 34 S.

Ct. 341, 346, 58 L. Ed. 652 (1914). In Terry v. Ohio, 392 U.S. 1,

88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Supreme Court stated

that where there is a reasonable and articulable suspicion that a

person has committed a crime, a limited search and seizure is not

-29- unreasonable. Thus, if the detaining officer can "point to

specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant [the search and

seizure]," the intrusion is lawful. Id. at 21, 88 S. Ct. at 1880.

Mississippi Deputy Sheriff Billy Collins initially stopped the

vehicle Gregg was driving because the automobile was weaving

between lanes. Thus, the initial detention was proper under Terry

because Collins had reasonable and articulable facts that warranted

the intrusion))Gregg had violated traffic laws. United States v.

Shabazz, 993 F.2d 431, 435 (5th Cir. 1993); United States v. Kye

Soo Lee, 898 F.2d 1034, 1040 (5th Cir. 1990). After Gregg was

initially detained, however, Collins was presented with a second

set of circumstances that, in our opinion, justified Gregg's

continued detention. This second set of facts included the smell

of marijuana emanating both from Gregg's person and from the

vehicle, Gregg's deception regarding whether he had ever been

arrested,27 and that Gregg was not the registered owner of the

vehicle. These factors gave Collins probable cause to believe that

the vehicle contained contraband, thus giving him the right to

search the vehicle. See United States v. Ryles, 988 F.2d 13, 14

n.2 (5th Cir.) (noting that an officer's "smelling marijuana

afford[s] probable cause to engage in a warrantless search" of a

27 While running routine computer checks during the traffic stop, Collins asked Gregg whether he had ever been arrested, and Gregg replied that he had not. See Shabazz, 993 F.2d at 437 (finding that an officer may lawfully ask questions of traffic-stop detainees while waiting for the results of computer checks). However, Collins discovered via the computer checks that Gregg previously had been arrested in Florida for a drug-related offense.

-30- vehicle), cert. denied, ___ U.S. ___, 114 S. Ct. 168, 126 L. Ed. 2d

128 (1993); United States v. Piaget, 915 F.2d 138, 140 (5th Cir.

1990) ("A warrantless search of an automobile is permissible where

officers have probable cause to believe the vehicle contains

contraband.").

Gregg nevertheless contends that because Collins did not have

probable cause to search the camera bag in which Collins found

marijuana and cocaine, the evidence should be suppressed. However,

Gregg ignores the fact that he abandoned the camera bag. When

Collins asked Gregg who owned the bag, Gregg shrugged his shoulders

and stated that he did not know.28 Gregg thus abandoned the bag,

allowing Collins to examine its contents. Piaget, 915 F.2d at 140;

Garcia, 849 F.2d at 919; United States v. Canady, 615 F.2d 694,

697 (5th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 165, 66 L.

Ed. 2d 78 (1980). "Once a bag has been abandoned, and the

abandonment is not a product of improper police conduct, the

defendant cannot challenge the subsequent search of the bag."

Piaget, 915 F.2d at 140. As Collins had probable cause both to

stop Gregg's vehicle and to search it, Gregg could not have

abandoned the bag as result of improper police conduct.

Consequently, we find no error in the district court's denial of

Gregg's motion to suppress.

28 Gregg appears to challenge the district court's decision to credit the testimony of officer Collins over that of Gregg. However, we must give due deference to the credibility determinations of the district court, who has the opportunity to observe the demeanor of witnesses. See Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988).

-31- B

Gregg further argues that the prosecutor engaged in

prosecutorial misconduct by improperly bolstering the credibility

of government witnesses and expressing his personal opinion about

the credibility of one government witness during closing arguments.

The government contends that the prosecutor simply responded,

albeit in a "rhetorically excessive" fashion, to defense counsel's

attack on the credibility of the witnesses.

Thomas did not object to the prosecutor's statements that he

now contends requires reversal of his conviction. Consequently, we

must consider whether the statements were improper and, if so,

whether they amounted to plain error under Fed. R. Crim. P. 52(b).29

United States v. Hernandez, 891 F.2d 521, 526 (5th Cir. 1989),

cert. denied, 495 U.S. 909, 110 S. Ct. 1935, 109 L. Ed. 2d 298

(1990). We must review the allegedly improper argument "in light

of the argument to which it responded." United States v. Canales,

744 F.2d 413, 424 (5th Cir. 1984). Thus, the government "may even

present what amounts to be a bolstering argument if it is

specifically done in rebuttal to assertions made by defense counsel

in order to remove any stigma cast upon [the prosecutor] or his

witnesses." United States v. Dorr, 636 F.2d 117, 120 (5th Cir.

1981).

29 Fed. R. Crim. P. 52(b) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

-32- During closing arguments, defense counsel contended that the

plea bargain agreements between many of the government witnesses

and the prosecution invited the witnesses to perjure themselves so

as to procure lesser sentences. Specifically, defense counsel

argued that Clark, who testified that he was afraid of the

prosecutor, lied because of the "Draconian thumb" that the

government placed on his neck.30 The prosecutor, in rebuttal,

responded in kind:

Perhaps I should turn to Aaron Clark and why he is afraid of me. And you know, Ladies and Gentlemen, they're right, Aaron Clark was afraid of me, and I hope he was afraid of me. I hope he remains afraid of me, because he did something that is unforgivable, he lied under oath to you; that isn't tolerable.

As Clark admitted under oath that he lied to the jury with regard

to whether he was an employee of Hodgkiss or an "independent

contractor," the prosecutor was entitled to comment before the jury

on Clark's testimony. Moreover, the prosecutor's statements

directly responded to defense counsel's attacks on both the

prosecutor and government witnesses who testified pursuant to plea

agreements. Accordingly, the comments were not improper and do not

constitute plain error under Rule 52(b).

30 Defense counsel also argued that the government first determined what it believed to be the truth and then "put[] the thumbscrew on the witness" to agree with the government's version.

-33- V

Ellis Ray Thomas

-34- Thomas contends that he was denied his Sixth Amendment right

to effective assistance of counsel because his trial counsel failed

to make various objections at trial and also failed to move for a

judgment of acquittal following the close of the evidence. Thomas,

however, failed to present this issue to the district court.31

"The general rule in this circuit is that a claim of

ineffective assistance of counsel cannot be resolved on direct

appeal when the claim has not been before the district court since

no opportunity existed to develop the record on the merits of the

allegation." United States v. Higdon, 832 F.2d 312, 313-14 (5th

Cir. 1987), cert. denied, 484 U.S. 1075, 108 S. Ct. 1051, 98 L. Ed.

2d 1013 (1988). If the defendant fails to raise the claim before

the district court, we will reach the merits of the claim only if

the record is well-developed. Id. This is not such a case. As in

United States v. Freeze, 707 F.2d 132, 139 (5th Cir. 1983),

[w]hile we might be able to determine, on the basis of the trial record, whether the defendant had been deprived of effective assistance of counsel with regard to the failure to make a motion for judgment of acquittal, we can only speculate about why defense counsel made no objections to the evidence. Accordingly, we decline to reach the merits of the defendant's ineffective assistance claim.

Thomas, of course, may raise this issue in an appropriate

proceeding under 28 U.S.C. § 2255. Id.; see also United States v.

31 Although Thomas in his brief cited two instances where he raised his claim before the district court, we have reviewed the record without finding any indication that the district court was made aware of Thomas's allegation that his trial counsel was constitutionally ineffective.

-35- Casel, 995 F.2d 1299, 1307 (5th Cir.), cert. denied, ___ U.S. ___,

___ S. Ct. ___ (1993).

VI

Sentencing

The defendants appeal the sentences imposed by the district

court under the Sentencing Guidelines. We will affirm any sentence

imposed by the district court "so long as it results from a correct

application of the guidelines to factual findings which are not

clearly erroneous." United States v. Sarasti, 869 F.2d 805, 806

(5th Cir. 1989). "A factual finding is not clearly erroneous as

long as it is plausible in light of the record as a whole." United

States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).

The defendants initially argue that the district court erred

by calculating their sentences on the basis of drug purchases and

sales not only by themselves, but also by other co-conspirators.32

32 The presentence investigative report ("PSR") found that the Hodgkiss conspiracy distributed over 150 kilograms of cocaine or its equivalent. The PSRs additionally found that Hodgkiss, Thomas, Gregg, and Sanchez each should be held responsible for that amount. The defendants objected to these findings during sentencing. The district court, however, overruled the objections and adopted the PSRs's findings. Hodgkiss, Gregg, and Sanchez now argue that the district court did not comply with Fed. R. Crim. P. 32(c)(3)(D) because it failed to specifically find that they knew or reasonably should have foreseen that the conspiracy would involve over 150 kilograms of cocaine. However, an oral rejection of a defendant's objection to a PSR satisfies the rule. United States v. Sparks, 2 F.3d 574, 588 (5th Cir. 1993); United States v. Stouffer, 986 F.2d 916, 927 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 115, 126 L. Ed. 2d 80 (1993); United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992).

-36- They contend that because they could not have reasonably foreseen

that the Hodgkiss conspiracy would involve such a large quantity of

drugs, the district court should not have taken into account the

entire amount of drugs attributed to the conspiracy when

determining their respective base offense levels.33

"A district court's findings about the quantity of drugs

implicated by the crime are factual findings reviewed under the

`clearly erroneous' standard." United States v. Rivera, 898 F.2d

442, 445 (5th Cir, 1990). Applying this standard, we uphold the

district court's determinations that the defendants could

reasonably foresee the amount of cocaine for which they were held

responsible.

Hodgkiss contends that the evidence does not support the

district court's finding that he knew or should have reasonably

foreseen that the conspiracy he founded distributed over 150

kilograms of cocaine or its equivalent. However, drug ledgers

seized from Hodgkiss's residence indicate that the conspiracy was

responsible for distributing approximately 56 kilograms of cocaine

33 A defendant's base offense level is determined on the basis of all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense. U.S.S.G. § 1B1.3(a)(1). "Conduct `for which the defendant would otherwise be accountable' . . . includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." U.S.S.G. § 1B1.3, comment. (n.1).

-37- from January 27, 1988 to July 7, 1989. As this period constitutes

approximately one-third of the conspiracy's life-span, the district

court, in light of the record evidence, reasonably could have

inferred that the conspiracy was responsible for distributing in

excess of 150 kilograms of cocaine during its existence. Moreover,

testimony presented by the government and evidence contained in the

PSR, including information obtained from other defendants, also

established that the conspiracy distributed in excess of 150

kilograms of cocaine.34 Consequently, the district court's finding

that Hodgkiss, who organized and retained control over every aspect

of the conspiracy, knew or should have reasonably foreseen the

amount of controlled substances distributed by the conspiracy is

not clearly erroneous.

Gregg also contends that the district court improperly held

him accountable for an excessive quantity of drugs. However,

Gregg, pursuant to a carefully devised plan, delivered multiple

kilograms of cocaine to Richard Townsen for John Rogala that Rogala

later sold to Hodgkiss. Moreover, Norman Allanson testified that

Gregg transported, or attempted to transport, twenty-one kilograms

of cocaine from Florida to Texas for Rogala, who also joined forces

with Hodgkiss to manufacture a large quantity of methamphetamine.

Furthermore, the PSR indicates that Gregg was involved in

34 We note that government agents repeatedly classified this as "conservative" estimate of the entire amount of illegal substances distributed during the life of the conspiracy.

-38- transporting massive quantities of cocaine for Allanson and Rogala.

See also part II.B.2 supra. "[A]n individual dealing in a sizable

amount of controlled substances ordinarily will be presumed to

recognize that the drug organization with which he deals extends

beyond his universe of involvement."35 United States v. Thomas, 963

F.2d 63, 65 (5th Cir. 1992). Thus, the district court's finding

that Gregg was responsible for the distribution of over 150

kilograms of cocaine is not clearly erroneous.36

35 In this regard, we note that Gregg apparently was not a novice in matters related to the distribution of controlled substances. Ledgers seized from Gregg's residence indicated that, separate from the Hodgkiss conspiracy, he was responsible for drug sales of over $245,000 between 1987 and 1990. 36 Gregg argues that recent amendments to the commentaries and application notes for U.S.S.G. § 1B1.3 indicate that the district court erroneously held him accountable for a quantity of drugs not reasonably foreseeable to him. Illustration (c)(7) to application note 2 provides:

Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S's agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount . . ., rather than the much larger quantity imported by Defendant R.

In United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993), we cited this illustration when vacating the sentences of defendants convicted of conspiring to distribute drugs "who may [have been] involved in less than the entire conspiracy." Maseratti, however, is distinguishable from the present case because the evidence indicates that Gregg, like the other defendants, did not enter into an agreement involving limited conduct like that described in the illustration. Instead, Gregg agreed to enter into an ongoing relationship with other co-conspirators involving not only the acquisition and distribution of drugs, but also protecting the conspiracy from detection using the relatively sophisticated code and delivery systems. Moreover, the evidence indicates that Gregg knew both that he was part of a larger conspiracy and that his actions helped to ensure))indeed, were necessary for))the success

-39- 3

Thomas argues that the district court improperly held him

accountable for the entire amount of controlled substances

distributed by the Hodgkiss conspiracy. Hodgkiss's drug ledgers

indicated that between January 1988 and July 1989, Thomas))whom

Hodgkiss assigned code number "07"))received in excess of two

kilograms of cocaine and amphetamine from Hodgkiss. Moreover, both

Curtis and Clark identified Thomas as someone to whom they

delivered narcotics on a regular basis for several years. Thomas

also served as a conduit for the delivery of drug ledgers and drugs

from Clark to Hodgkiss. See also part II.B.3 supra. Accordingly,

the district court's finding that Thomas knew or should have

reasonably foreseen that the conspiracy of which he was a member

would distribute in excess of 150 kilograms of cocaine is not

clearly erroneous.

Sanchez contends that he could not reasonably foresee that the

Hodgkiss conspiracy would distribute the amount of drugs for which

the district court held him responsible. However, Sanchez))whom

Hodgkiss assigned code number "06"))sold large quantities of

marijuana to Hodgkiss on three separate occasions. On two

occasions, Sanchez received $8,800 in drug-related proceeds from

Clark as payment for the marijuana. Clark also identified Sanchez

as one of Hodgkiss's distributors to whom Clark delivered cocaine

of the conspiracy.

-40- and amphetamine on numerous occasions. Ledgers seized from

Hodgkiss's residence indicated that from January 27, 1988 to July

7, 1989, Sanchez received twenty-two ounces of cocaine and five

ounces of amphetamine from Hodgkiss. Moreover, a telephone

scrambling device seized from Sanchez's residence matched a similar

device found in possession of Hodgkiss. See also part II.B.4

supra. Consequently, the district court's finding that Sanchez knew

or should have reasonably foreseen that his co-conspirators would

be responsible for distributing in excess of 150 kilograms of

cocaine is not clearly erroneous.

The district court ultimately held Maxwell responsible only

for the distribution of between fifteen and fifty kilograms of

cocaine or its equivalent. This amount roughly corresponds to the

amount of cocaine sold by Alan Gardner during the time that Gardner

supplied both Hodgkiss and Maxwell with cocaine. In 1988, Maxwell

began purchasing on a regular basis multi-ounce quantities of uncut

cocaine from Gardner. Gardner's employee Charles Barton usually

delivered the cocaine to Maxwell, and Gardner often "fronted"

Maxwell the uncut cocaine. Cf. U.S.S.G. § 2D1.1, comment. (n.8)

(noting "the fact that a defendant is in possession of unusually

pure narcotics may indicate a prominent role in the criminal

enterprise and proximity to the source of the drugs. . . . [T]his

factor is particularly relevant where smaller quantities are

involved."). Maxwell also sold cocaine to Ronald McWilliams, who

-41- at one time had been a supplier of cocaine to Maxwell. See also

part II.B.1. supra. The district court found from this evidence

that Maxwell reasonably should have foreseen from this evidence

both that the conspiracy with which he was involved extended beyond

himself and that the conspiracy was distributing at least fifteen

kilograms of cocaine. Because this finding is not clearly

erroneous, we will uphold Maxwell's sentence.

Thomas and Hodgkiss argue that the district court erred in

sentencing them under the amendments to the sentencing guidelines

effective November 1, 1989, because the Hodgkiss conspiracy ended

before that date. They contend that because the 1989 amendments to

the guidelines increased the penalties to which they were subject,

the district court violated the Ex Post Facto Clause of the

Constitution by sentencing them under the amendments.

"[A]n increase in sentence based on an amendment to the

guidelines effective after the offense was committed `would be an

obvious . . . violation' of the ex post facto clause in article 1

of the United States Constitution." United States v. Suarez, 911

F.2d 1016, 1021 (5th Cir. 1990) (quoting United States v. Woolford,

896 F.2d 99, 102 n.4 (5th Cir. 1990)). A conspiracy, however, "is

a continuing offense. So long as there is evidence that the

conspiracy continued after the effective date of the [amendments to

the] guidelines, the Ex Post Facto Clause is not violated." United

-42- States v. Buckhalter, 986 F.2d 875, 880 (5th Cir.), cert. denied,

___ U.S. ___, 114 S. Ct. 203, 126 L. Ed. 2d 160 (1993).

Thomas and Hodgkiss argue that no evidence exists

demonstrating that any acts related to the conspiracy took place

after November 1, 1989. They do not, however, argue that they

withdrew from the conspiracy by taking "affirmative acts

inconsistent with the object of the conspiracy and communicated in

a manner reasonably calculated to reach other conspirators."

United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65, 98 S. Ct.

2864, 2887-88, 57 L. Ed. 2d 854 (1978); see also United States v.

Puma, 937 F.2d 151, 157-58 (5th Cir. 1991), cert. denied, ___ U.S.

___, 112 S. Ct. 1165, 117 L. Ed. 2d 412 (1992). If a conspirator

fails to effectively withdraw from the conspiracy, he "will be

sentenced under the [amendments to the] guidelines even if he

himself did not commit an act in furtherance of the conspiracy

after [November 1, 1989], or did not know of acts committed by

other co-conspirators after [November 1, 1989], if it was

foreseeable that the conspiracy would continue past the effective

date of the [amendments]." Devine, 934 F.2d at 1332.

The district court determined that the defendants should be

sentenced under the 1989 amendments because the evidence adduced

both at trial and during sentencing indicated that the conspiracy

did not cease until, at the earliest, the search of Hodgkiss's home

in December 1989. We regard this determination as a factual

finding protected by the clearly erroneous standard of review. Id.

-43- After reviewing the record as a whole, we find that the district

court's conclusion was not clearly erroneous.37 Moreover, the jury,

as alleged in the indictment, found the defendants guilty of

conspiring to distribute drugs from "on or about June 1, 1986 and

continuing until December 15, 1989." Consequently, the district

court's use during sentencing of the amendments in effect at the

time the conspiracy concluded did not violate the Ex Post Facto

Clause.

Gregg contends that he was entitled to a downward adjustment

under the sentencing guidelines for minimal or minor participation

in the conspiracy.38 He argues that he was only slightly involved

with the conspiracy and therefore is less culpable than the other

conspirators. Section 3B1.2, however, is designed to reduce a

sentence only when a defendant is substantially less culpable than

the average participant in the offense. United States v.

Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989), cert. denied, 495

U.S. 923, 110 S. Ct. 1957, 109 L. Ed. 2d 319 (1990). The district

37 For example, we note that Hodgkiss's drug ledgers indicate that at least one drug transaction occurred during December 1989. Moreover, Clark))whom Hodgkiss concedes was his employee))testified that his relationship with Hodgkiss did not end until December 1989. 38 U.S.S.G. § 3B1.2 provides: Based on the defendant's role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling in between (a) and (b), decrease by three levels.

-44- court denied Gregg's request for a downward adjustment because

Gregg was not substantially less culpable than the average co-

conspirator. We agree that the record belies Gregg's argument that

he was a minimal or minor participant in the Hodgkiss conspiracy.

See parts II.B.2 and VI.A.2 supra. Consequently, we will not

disturb the district court's finding that Gregg was not a minimal

or minor participant.

D

Gregg argues he was entitled to a downward adjustment in his

offense level because he accepted responsibility for his crimes.

Under § 3E1.1(a) of the guidelines, "[i]f the defendant clearly

demonstrates a recognition and affirmative acceptance of personal

responsibility for his criminal conduct," a district court may

reduce the defendant's offense level by two points. However, the

adjustment "is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential

factual elements of guilt, is convicted, and only then admits guilt

and expresses remorse." U.S.S.G. § 3E1.1. comment. (n.2). The

district court found that Gregg did not fully accept responsibility

for his crimes and refused to reduce the offense level. We review

this finding using the clearly erroneous standard. United States

v. Hardeman, 933 F.2d 278, 283 (5th Cir. 1991).39

39 We have not definitively determined what standard applies when reviewing a district court's refusal to credit a defendant's acceptance of responsibility. Compare Hardeman, 933 F.2d at 283 (applying the clearly erroneous standard) with United States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989) (applying the "without foundation" standard) and United States v. Brigman, 953 F.2d 906, 909 (5th Cir.) (applying the "great deference" standard), cert.

-45- While Gregg accepted responsibility for some acts, he did not

demonstrate "sincere contrition" regarding the full extent of his

criminal conduct. United States v. Beard, 913 F.2d 193, 199 (5th

Cir. 1990). Instead, Gregg both minimized his participation in the

conspiracy even after he was found guilty and refused to discuss

information contained in the drug ledgers seized from his home.

See United States v. Windham, 991 F.2d 181, 183 (5th Cir.) (noting

that a defendant is required under the pre-1992 guidelines to

accept responsibility for all relevant criminal conduct to be

eligible for a downward departure under § 3E1.1), cert. denied, ___

U.S. ___, ___ S. Ct. ___ (1993); United States v. Alfaro, 919 F.2d

962, 968 (5th Cir. 1990) (same). Accordingly, the district court's

finding that Gregg did not accept responsibility is not erroneous.

E

Gregg further contends that the district court miscalculated

his criminal history category for sentencing purposes.40 Gregg

contends that the district court improperly considered hearsay

evidence, supplied by a government agent, indicating that Gregg was

involved in narcotics activity while on probation from a previous

conviction. However, a district court "may properly consider any

denied, ___ U.S. ___, 113 S. Ct. 49, 121 L. Ed. 2d 16 (1992). For the purpose of this appeal, however, "there appears to be no practical difference between the three standards." United States v. Cartwright, ___ F.3d ___, slip op. at 893 (Oct. 25, 1993). 40 The guidelines direct the district court to "[a]dd 2 points [to the defendant's offense level] if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." U.S.S.G. § 4A1.1.

-46- relevant evidence `without regard to its admissibility under the

rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable accuracy'" during sentencing. Alfaro, 919 F.2d at 964

(quoting U.S.S.G. § 6A1.3(a)).

Sworn testimony given by a government agent at a sentencing

hearing generally bears sufficient indicia of reliability to be

considered by the trial judge during sentencing. See id. at 966

(noting that a PSR generally bears sufficient indicia of

reliability); United States v. Cuellar-Flores, 891 F.2d 92, 93

(5th Cir. 1989) (finding uncorroborated hearsay testimony provided

by a probation agent to be sufficiently reliable). Merely because

the agent's testimony was based on information obtained from one of

Gregg's co-conspirators is not sufficient to bar the district court

from considering it. Consequently, the district court did not err

by considering the agent's testimony when determining Gregg's

criminal history category.

F

The jury found Gregg guilty of conspiring to possess a

controlled substance with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1) and 846. Section 841(b)(1)(A), which is the

applicable sentencing provision, establishes one sentencing range

for first-time offenders and another for repeat offenders.41 Gregg

41 In cases where death or serious injury does not result from the use of an illegal substance, first-time offenders "shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life" while repeat offenders must be sentenced to not "less than 20 years [or] more than life." 21

-47- contends that the district court erred in sentencing him under the

repeat-offender provision of the statute because the government

failed to give timely notice pursuant to § 851(a)(1) of its intent

to seek such enhancement. The government responds that the notice

provision of § 851(a)(1) does not apply to enhancement under the

recidivist provisions of § 841(b).

Section 851(a)(1) requires the government to file an

information identifying the prior drug-related convictions upon

which a defendant convicted of an offense under § 841 is to be

given an enhanced sentence:

No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon. . . .

Thus, the § 851(a)(1) notice requirement applies "to situations in

which a convicted defendant's statutory minimum or maximum penalty

is enhanced under [21 U.S.C § 841]." United States v. Wallace, 895

F.2d 487, 490 (8th Cir. 1990); see also United States v. Marshall,

910 F.2d 1241, 1244-45 (5th Cir. 1990) ("the notice requirement

applies to persons convicted of an offense under Title 21 when the

Government seeks to enhance the maximum penalties under the

recidivist provision of that statute"), cert. denied, 498 U.S.

1092, 111 S. Ct. 976, 112 L. Ed. 2d 1061 (1991); Hansen v. United

U.S.C. § 841(b)(1)(A).

-48- States, 904 F.2d 306, 309 (5th Cir. 1990) (same), cert. denied, 498

U.S. 1052, 111 S. Ct. 765, 112 L. Ed. 2d 784 (1991). As a result,

the government failed to comply with § 851(a) by filing the

enhancement notice after trial.

Because the government did not timely comply with § 851(a)(1),

the district court did not have jurisdiction to enhance Gregg's

sentence under the recidivist provisions of § 841(b). United

States v. Noland, 495 F.2d 529, 533 (5th Cir.), cert. denied, 419

U.S. 966, 95 S. Ct. 228, 42 L. Ed. 2d 181 (1974); see also Suveges

v. United States, ___ F.3d ___, 1993 WL 403091 (1st Cir. Oct. 14,

1993) ("The filing of such an informational notice is

jurisdictional."); United States v. Belanger, 970 F.2d 416, 417

(7th Cir. 1992) ("Failure to file the notice prior to trial

deprives the district court of jurisdiction to impose an enhanced

sentence."); United States v. Novey, 922 F.2d 624, 627 (10th Cir.)

(same), cert. denied, ___ U.S. ___, 111 S. Ct. 2861, 115 L. Ed. 2d

1028 (1991). Moreover,

[e]ven when the defendant is not surprised by the enhanced sentence, was aware from the outset that his previous conviction could lead to an enhanced sentence, never challenged the validity of the prior conviction, and admitted it at the sentencing hearing, the statute prohibits an enhanced sentence unless the government first seeks it by properly filing an information prior to trial.

United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990),

cert. denied, 498 U.S. 1091, 111 S. Ct. 972, 112 L. Ed. 2d 1058

(1991); see also Noland, 495 F.2d at 533 (same). Accordingly, we

-49- vacate Gregg's sentence and remand this matter to the district

court for resentencing.

VII

For the foregoing reasons, we REMAND to permit the district

court to determine in the first instance whether the notes

described herein constitute either Jencks Act or Brady material.

We REVERSE as to Gregg's sentence and REMAND for resentencing. We

AFFIRM the district court's decision in all other respects.

-50-