IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-1487

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES E. WEBSTER and BOBBY NELSON,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________________________________________________

(May 5, 1992)

Before KING, JOHNSON and DAVIS, Circuit Judges.

PER CURIAM:

Charles Webster and Bobby Nelson were convicted of

conspiracy to distribute and possess with intent to distribute

controlled substances. Webster was also convicted of money

laundering and using and carrying a firearm during and in

relation to a drug offense. They appeal their convictions and

their sentences, arguing that the district court made numerous

errors throughout the trial and sentencing. We affirm their

convictions, but vacate and remand their sentences to allow the

district court to determine the amount of drugs each defendant

knew or reasonably should have foreseen was involved in the

conspiracy.
2

I. BACKGROUND

Charles Webster and Bobby Nelson were tried together on a

seven-count indictment. Both were charged with conspiring to

distribute, and possess with intent to distribute, controlled

substances. The remaining six counts were brought against

Webster only. Five counts charged him with instances of money

laundering and one count charged him with using and carrying a

firearm during and in relation to a drug trafficking offense. 

The jury found the defendants guilty as charged after a six-day

trial. 

Webster owned a building in Amarillo which housed a

restaurant known as the Cotton Club. He leased the restaurant to

Nelson, who operated it. Both Webster and Nelson sold drugs

(including cocaine, marijuana, Preludin and Dilaudid) from

various locations, including inside and outside the building that

housed the Cotton Club, as well as the adjacent building, their

vehicles, their residences, and a car wash.

In October 1988 the county sheriff's department executed a

search warrant for the building next to the Cotton Club and for

Webster's vehicle. Under a bench in front of the building, the

search uncovered a plastic bag with two glass bottles containing

Dilaudid and Preludin tablets. The search of Webster's car

revealed the following items: a .22 caliber pistol and a

marijuana cigarette in the trunk, and a tupperware container in

the front seat, which contained a billfold with Webster's

driver's license and credit cards, a plastic drinking cup with
3

Webster's fingerprints, a ledger, a loaded .357 magnum, and a

baggie containing 55.47 grams of cocaine. A December 1988 search

of the Cotton Club turned up a freezer bag, containing marijuana

and cocaine, and a number of small plastic baggies contained in a

larger plastic bag. A search of Webster's residence resulted in

the seizure of a glass crack pipe from under the seat of his

Mercedes (where he had been seated), cocaine, $30,215 in cash,

$44,000 in savings bonds, several firearms, a set of electric

scales, and thousands of small zip-lock baggies. The district

court denied Webster's motion to suppress the evidence resulting

from the search of his residence.

Six days after the trial was over, the defendants moved for

a new trial on the ground of juror incompetence and misconduct. 

Accompanying the motions for a new trial was an affidavit of an

alternate juror who stated that one of the jurors suffered from a

hearing impairment throughout most of the trial, and repeatedly

asked other jurors to repeat what had been said. The court heard

testimony from the alternate juror, as well as from additional

witnesses, and ultimately denied the motion. 

II. DISCUSSION

A. New Trial for Juror Misconduct/Incompetency

Webster and Nelson argue that the trial court should have

conducted a fuller investigation into jury misconduct and

incompetence, or should have granted them a new trial. The

district court held two hearings on the defendants' motion for a

new trial. At those hearings, the court heard testimony,
4

elicited by the defendants, from an alternate juror (Hathcock),

and from a government agent with whom Hathcock had previously

cooperated in an undercover capacity in a different matter. The

government called the court security officer who served as

bailiff during the trial (Glen Parrot), the district court clerk

during the trial (Sharon Sauls), Hathcock's estranged wife (Patty

Hathcock), and an acquaintance of the Hathcocks' (Celia Forbis)

to testify at the second hearing on motion for new trial. 

Following those hearings, the court denied the defendants' motion

for a new trial, finding that Hathcock's testimony was not

credible. 

Hathcock testified that one of the jurors (McGill) had

trouble hearing during the trial. Parrot testified that, at one

point during the trial, a number of the jurors expressed

difficulty hearing Nelson's attorney, but that no individual

juror indicated a particular problem hearing during the course of

the trial. He testified that he later asked if anyone was having

difficulty hearing, and the jurors indicated they were no longer

having any trouble. The other witnesses testified regarding

Hathcock's credibility and his acquaintance with one of the

defense lawyers. 

McGill evidently was suffering from an allergy which caused

her sinuses to fill and her ears to block. The trouble first

appeared during voir dire, when McGill informed the judge that

she was having trouble hearing what was going on. At that point

the court informed her that if she was selected as a juror she
5

would be seated in the jury box, closer to the proceedings. For

the remainder of the voir dire, however, the judge invited McGill

to move to a seat which would place her closer to the lawyers and

the judge. After taking a closer seat, McGill was asked by the

prosecutor whether she could hear adequately. McGill replied

that she could, "sometimes." The judge informed McGill that if

she had trouble hearing, she should inform the court, to which

McGill replied: "My ears are really stopped." The judge

responded, "All right," and the voir dire continued. Evidently,

neither side attempted to exclude McGill from the jury for cause

or otherwise. In fact, the issue of McGill's hearing did not

arise again until after the trial and verdict, when the

defendants submitted their motion for new trial.

The defendants argue that the district court did not

adequately respond to their motion for new trial. They contend

that the court should have engaged in further questioning,

including interviews of the jurors, in order to ascertain

McGill's ability to follow the proceedings and whether or not her

actions (asking other jurors what had been said) constituted

juror misconduct. They cite United States v. McKinney, 429 F.2d

1019 (5th Cir. 1970) (McKinney I), for the proposition that the

court should have gone further than it did. The defendants

contend that McKinney I imposes a strict procedure, which a judge

must follow whenever a new trial motion alleges juror misconduct. 

The procedure would include a "full investigation" to determine

whether the misconduct occurred, and if so, whether it was
6

prejudicial. In any event, the judge must set forth any findings

with adequate specificity for meaningful appellate review. 

McKinney I, 429 F.2d at 1026. 

This argument ignores the fact that we repudiated McKinney I

on rehearing. United States v. McKinney, 434 F.2d 831, 833 (5th

Cir. 1970), cert. denied, 401 U.S. 922 (1971) (McKinney II). In

McKinney II, the court noted the inappropriateness of a strict

procedure in cases such as this; instead, the court required

fact-specific decision-making. "The trial court's duty in

deciding a motion for new trial when jury misconduct is alleged

must be judged on the peculiar facts and circumstances of each

case. . . . And the trial court's decision will be reversed only

upon a showing of an abuse of discretion." United States v.

Sedigh, 658 F.2d 1010, 1014 (5th Cir. Unit A 1981), cert. denied,

455 U.S. 921 (1982) (citing McKinney II). 

We review the district court's denial of the defendants'

motion for a new trial for a clear abuse of discretion. Id.;

United States v. Fowler, 735 F.2d 823, 830 (5th Cir. 1984). The

trial court denied the defendants' motion in part on its finding

that Hathcock was not a credible witness. The court cited

inconsistency in Hathcock's testimony, as well as what the court

found to be misrepresentations about a prior relationship between

Hathcock and Webster's attorney. Overall, the court found that

Hathcock's testimony failed to raise a colorable claim of

incompetence regarding McGill. 
 

1In fact, Tanner did not reach the question of whether such

exceptions actually exist. Instead, the Court merely assumed

that the Rule left open the possibility that it had incorporated

the common law exception. Since the exception was inapplicable

in the Tanner case, the Court did not conclusively decide the

question.

7

The defendants spend much of their argument attempting to

show that the district court's finding regarding Hathcock's

credibility was wrong. Their efforts are misdirected. They do

not show even that the finding was clearly erroneous, let alone

an abuse of discretion. In fact, the testimony of every other

witness at the post-trial hearings dealt with Hathcock's

credibility. Determinations of credibility fall clearly within

the peculiar competence of the district court. We certainly

cannot say that such a determination constitutes an abuse of

discretion.

Both parties argue heatedly over whether Hathcock should be

considered a "non-juror" for the purposes of Fed. R. Evid.

606(b), which prohibits testimony by a juror "as to any matter or

statement occurring during the course of the jury's deliberations

or to the effect of anything upon that juror or any other juror's

mind or emotions as influencing the juror to assent to or dissent

from the verdict or indictment or concerning the juror's mental

processes in connection therewith." In Tanner v. United States,

483 U.S. 107, 117 (1987), the Supreme Court noted that exceptions

to this rule were recognized only when extraneous influences were

brought to bear on the jury.1 This created a distinction between

internal and external influences; juror testimony about internal
8

effects would be prohibited by the Rule, while testimony could be

heard regarding external influences. 

In Tanner, the Court noted that "[c]ourts wisely have

treated allegations of a juror's inability to hear or comprehend

at trial as an internal matter." Tanner, 483 U.S. at 118 (citing

Government of Virgin Islands v. Nicholas, 759 F.2d 1073 (3d Cir.

1985); Davis v. United States, 47 F.2d 1071 (5th Cir. 1931)). We

applied the Tanner rule in Weaver v. Puckett, 896 F.2d 126, 128

(5th Cir.), cert. denied, 111 S. Ct. 427 (1990). In Weaver we

noted that, in order to initiate any post-verdict inquiry into an

internal matter regarding a juror, an "'extremely strong showing'

of juror incompetence" must be adduced, and "substantial evidence

of incompetence must originate in a non-juror source . . . ." 

Id. 

In this case, the district court noted the Weaver standard

and found that the evidence presented by the defendants did not

constitute the requisite "extremely strong showing" of juror

incompetence. This finding is consistent with the court's

credibility determination, noted earlier. We need not decide the

question whether Hathcock should be considered a non-juror source

for the purposes of Rule 606. The district court's decision

noted, and we agree, that even if Hathcock were considered a nonjuror, his testimony (especially in the light of the district

court's credibility determination) did not meet the high standard

required for the court to continue its investigation by

questioning jurors. 
 

2Nelson joined in Webster's motion to suppress. Nelson

concedes that he does not have Fourth Amendment standing to move

for suppression of evidence based on a search warrant for

Webster's residence. United States v. Tolliver, 780 F.2d 1177,

1184-85 (5th Cir. 1986), vacated on other grounds, 479 U.S. 1074

(1987). He argues, however, that his Fifth Amendment right to a

fair trial was infringed by the introduction of improperly

obtained evidence. United States v. Merkt, 764 F.2d 266 (5th Cir

1985). The government argues that Merkt stands only for the

proposition that evidence may be excluded if it was obtained in

violation of a non-defendant's Fifth Amendment right, and that it

should not be extended to cover alleged violations of a codefendant's Fourth Amendment rights. Since we agree with the

district court that the search was conducted in good-faith

reliance on the warrant, we do not reach the question of Nelson's

standing.

9

B. Webster's Motion to Suppress

Webster filed a motion to suppress evidence resulting from a

search of his residence based on a warrant dated July 11, 1990. 

He alleged that the information on which the search warrant was

issued was stale, and that there was a lack of probable cause for

the search warrant.2 The warrant was issued based on a deputy

sheriff's affidavit, which described a number of arrests, police

surveillance, and informants' observations regarding Webster

between 1984 and 1990. 

Webster cites United States v. Freeman, 685 F.2d 942 (5th

Cir. 1982), for the proposition that items such as drug caches

and paraphernalia are more sensitive to staleness than items such

as documentary records. Id. at 951. Webster alleges that the

only statement in the affidavit concerning the location of

controlled substances or paraphernalia at Webster's residence was

an assertion that a confidential informant bought drugs from

Webster at his residence on two unspecified dates in 1988. Even
 

3In addition to the staleness claim, Webster argues that no

probable cause existed for the issuance of a search warrant to

seize records, documents, and correspondence relating to gambling

paraphernalia. Since we find that the officers' good-faith

reliance on the warrant was reasonable and justified, we do not

reach the question of probable cause.

 

4(1) If the issuing magistrate/judge was misled by

information in an affidavit that the affiant knew was false or

would have known except for reckless disregard of the truth; (2)

where the issuing magistrate/judge wholly abandoned his or her

judicial role; (3) where the warrant is based on an affidavit so

lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable; and (4) where the warrant

is so facially deficient in failing to particularize the place to

be searched or the things to be seized that the executing

officers cannot reasonably presume it to be valid. 

10

assuming the dates were in late 1988, Webster argues, more than

18 months had passed before the search warrant was issued.3 

We engage in a two-step review of the trial court's denial

of Webster's motion to suppress. The first step requires us to

decide whether the good-faith exception to the exclusionary rule

applies. United States v. Craig, 861 F.2d 818, 820-21 (5th Cir.

1988); United States v. Leon, 468 U.S. 897 (1984). If the goodfaith exception applies, we need not reach the question of

probable cause. Craig, 861 F.2d at 820-21.

The magistrate relied on United States v. Mueller, 902 F.2d

336, 340 (5th Cir. 1990), for a statement of the four exceptions

to the good-faith doctrine.4 The magistrate found that none of

these exceptions applied, and therefore that the good-faith

doctrine rendered the officers' reliance on the warrant

reasonable and justified. Of the four exceptions, Webster only

contends that one (affidavit so lacking in indicia of probable

cause as to render official belief in its existence entirely
11

unreasonable) applies to this case. He contends that the

staleness of the information in the affidavit requires

application of this exception to the good-faith rule. Given the

long-standing evidence of Webster's drug-trafficking activity,

the government argues that the officers' reliance on the warrant

was reasonable. United States v. Webster, 734 F.2d 1048, 1056

(5th Cir.), cert. denied, 469 U.S. 1073 (1984).

Webster characterizes the affidavit too narrowly. The

affidavit alleged the existence, based on numerous sources of

information, of a "long-standing, ongoing pattern of criminal

activity . . . ." Webster, 734 F.2d at 1056. The affidavit

included allegations of drug sales at the Cotton Club and

adjacent buildings, as well as at Webster's residence. These

allegations included drug sales within one or two weeks prior to

the warrant's issuance. The fact that some of these sales took

place at locations other than Webster's residence is not

determinative. The affidavit alleged that, based on the

officer's experience, drug dealers and traffickers commonly keep

caches of drugs, as well as paraphernalia and records of drug

transactions, in their residences. In other words, the basis for

searching Webster's residence was his overall drug trafficking

and sales activity, not just those sales that actually took place

at his residence.

Similarly, although the transactions on which the moneylaundering allegations were based were initiated more than a year

prior to the warrant's issuance, the affidavit alleged that cash
12

payments had been made as recently as one month prior to the date

of the warrant. Based on the "laminated total" of available

facts, Craig, 861 F.2d at 821, it seems clear that the officers'

reliance on the warrant was reasonable, especially given the

allegations of long-standing, ongoing criminal activity. Cf.

Webster, 734 F.2d at 1056. Since the officers' good-faith

reliance on the warrant was justified, we do not reach the issue

of probable cause. Craig, 861 F.2d at 821.

C. Sufficiency of the Evidence

Webster and Nelson challenge the sufficiency of the evidence

to convict them on the conspiracy count. Webster further argues

that the evidence was insufficient to convict him of the money

laundering counts and the firearm count.

On a challenge of insufficient evidence, we review the

evidence presented at trial in the light most favorable to the

guilty verdict. United States v. Nixon, 816 F.2d 1022, 1029 (5th

Cir. 1987), cert. denied, 484 U.S. 1026 (1988). The standard of

review is whether any rational trier of fact could have found the

essential elements beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

1. Conspiracy count

Both Webster and Nelson contend that the evidence was

insufficient to support the jury's verdict on the conspiracy

count with which both were charged. Both defendants timely moved

for acquittal at the close of the government's case and renewed

their motions at the close of the evidence. They argue that the
13

evidence presented at trial did not prove the elements of the

charged conspiracy beyond a reasonable doubt. 

The defendants concede that the evidence showed that both

had possessed and sold drugs, and that each had referred clients

to the other. They argue, however, that the government did not

present evidence of an actual agreement or conspiracy between the

two, and that the only evidence presented was of isolated drug

transactions engaged in by one or the other defendant. They

contend that the rental arrangement between Webster and Nelson

was a legitimate business arrangement which explains their

association and their proximity to one another at various times. 

They also argue that merely referring a willing buyer to a

willing seller does not prove the existence of a conspiracy. See

United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985).

The elements of the crime of conspiracy include (1) that a

common agreement or conspiracy existed, (2) that the accused knew

of the conspiracy, and (3) that the accused, with knowledge,

voluntarily joined the conspiracy. United States v. Elam, 678

F.2d 1234, 1245 (5th Cir. 1982). It is not necessary that the

members of a conspiracy work together on every transaction. Id.

at 1247. The government need not prove the existence of the

agreement by direct evidence; it may rely on circumstantial

evidence. United States v. Bankston, 603 F.2d 528, 531 (5th Cir.

1979). The evidence, viewed in the light most favorable to the

verdict, showed that the defendants sold drugs in each others'

presence; that they consistently referred buyers to one another;
14

that they sold drugs stored in the same cache; that when one was

selling from the cache, the other would come over to get drugs

from the bag to sell; that if one needed to sell a drug that he

did not have, he would obtain it from the other; and that one

honored the other's volume discount. This evidence is clearly

sufficient for a jury to infer the existence of a conspiracy

between the defendants.

2. Money laundering counts

Webster also argues that the evidence was insufficient to

convict him on the money laundering counts. He concedes that he

made the cash purchases that represent the bases for the money

laundering counts. He contends, however, that the jury's

findings on the money laundering counts are unsupported because

defense witnesses testified that they saw Webster gambling and

winning "substantial sums of money in the thousands of dollars."

At trial the government presented evidence of drug sales and

of Webster's legitimate cash income, which the government

contended was insufficient to support the amount of cash payments

he made. Evidence of a differential between legitimate income

and cash outflow is sufficient for a money-laundering conviction,

even when the defendant claims income from additional sources. 

United States v. Jackson, 935 F.2d 832, 839-42 (7th Cir. 1991). 

The evidence in this case conforms to the Jackson standard.

Webster also argues that the district court improperly

admitted opinion testimony by IRS agent Metzler, who testified

that Webster's unexplained cash receipts were evidence of income
15

from narcotic sales and from illegal gambling. Webster contends

that this amounted to testimony on an ultimate issue to be

decided by the trier of fact, in violation of Fed. R. Evid. 704.

Rule 704(a) states that "testimony in the form of an opinion

or inference otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact." 

Fed. R. Evid. 704(a) (emphasis added). The only exception to

Rule 704's allowance of expert testimony on ultimate issues is:

No expert witness testifying with respect to the mental

state or condition of a defendant in a criminal case may

state an opinion or inference as to whether the defendant

did or did not have the mental state or condition

constituting an element of the crime charged or of a defense

thereto.

Fed. R. Evid. 704(b). Since Metzler did not testify as to

Webster's mental state or condition, his testimony was admissible

under Rule 704. Webster's argument to the contrary is no more

than an exhortation to disregard the clear language of the Rule.

3. Firearm Count

Webster concedes that a Ruger .357 magnum revolver was

seized from a 1979 Cadillac in which he was sitting during an

October 1988 search. The gun was found in a tupperware box that

also contained 55.47 grams of cocaine. Webster argues that the

record does not reflect any evidence as to the amount of cocaine

consistent with personal use, and that therefore the government

did not prove that the firearm had been used or carried during

and in relation to a drug trafficking offense. Contrary to

Webster's assertion, however, DEA special agent Watson testified

that possession of 24 grams of cocaine was inconsistent with
16

personal use. The record supports Webster's conviction on the

firearm count. 

D. Sentencing Guidelines Issues

Webster and Nelson both argue that the district court erred

in overruling their objections to their presentence reports

(PSRs). They objected to the PSRs' findings attributing over two

kilograms of cocaine to them during the course of the conspiracy. 

Nelson also challenges the district court's enhancement of his

sentencing level for possession of a firearm during the

commission of the offense. 

We review factual findings under the sentencing guidelines

for clear error. United States v. Buenrostro, 868 F.2d 135, 137

(5th Cir. 1989), cert. denied, 495 U.S. 923 (1990). We must

uphold a sentence imposed under the guidelines unless it was

imposed in violation of law, or was imposed as a result of an

incorrect application of the sentencing guidelines, or was

outside the range of the applicable guideline and is

unreasonable. Id. at 136.

1. Attribution of drug quantity

Webster and Nelson argue that the district court erred in

overruling their objections to the PSRs, which attributed more

than two kilograms of cocaine to them during the conspiracy. 

They contend that the district court failed to make a specific

finding that each defendant knew or reasonably should have

foreseen the involvement of any particular quantity of drugs. 
17

The district court must make a specific finding of the

amount that each conspirator knew or should have known or

foreseen was involved in the conspiracy. United States v. Puma,

937 F.2d 151, 159-60 (5th Cir. 1991), cert. denied, 112 S. Ct.

1165 (1992). Puma held that a conviction for conspiracy does not

automatically mean that every conspirator could have foreseen the

total quantity of drugs involved in the entire conspiracy. 

The record in this case does not include the defendants'

objections to the PSRs, but the transcript of the sentencing

hearing does record the exchanges between the judge and defense

lawyers regarding the written objections to the PSRs. Both

defendants objected to the PSRs' attribution of more than two

kilograms of cocaine to each defendant. 

Nelson's PSR states that "the evidence presented during the

trial, along with the physical evidence seized by federal

authorities, supports a conservative total figure of more then

two kilos of cocaine, or its equivalent, dispersed by the

defendants during the course of the conspiracy." This language

indicates that the PSR took into account the drug sales of both

defendants without determining the amount either one of them knew

or reasonably should have foreseen. Webster's PSR states only

that "[t]he offense of conviction involves at least two kilograms

of cocaine, or its equivalent, according to the Government." The

"offense of conviction" was conspiracy. Neither PSR states that

either defendant knew or reasonably should have foreseen the

amount of drugs involved in the entire conspiracy. 
18

At the sentencing hearing, the judge overruled Webster's

objection, stating "the finding [in the PSR] is supported by the

evidence, and the Court makes the same finding." She also

overruled Nelson's objection, stating, "I will find that that is

an accurate estimate of the drugs involved." Neither response

addressed the question whether each defendant knew or reasonably

should have foreseen the amount of drugs involved in the entire

conspiracy. 

Rule 32(c)(3)(D) requires that the sentencing court make a

finding resolving each controverted matter in the PSR. Fed. R.

Crim. P. 32(c)(3)(D). While it is true that the sentencing court

may satisfy this requirement by rejecting a defendant's objection

and orally adopting the PSR's finding, see Puma, 937 F.2d at 155,

here neither the district court nor the PSR specifically

addressed the particular question at issue. 

The government argues that Webster and Nelson were involved

in a close-knit conspiracy and that each should have known the

amount of drugs attributable to the conspiracy. The government

also seeks to distinguish Puma from this case on its facts. In

Puma, the defendant was involved in the conspiracy at a much

lower level than the leaders of the conspiracy. Puma, 937 F.2d

at 154. The government contends that the evidence here points to

a close conspiracy in which Webster and Nelson shared a drug

cache. Given the nature of the conspiracy, it argues, there was

no need for separate findings for each defendant.
19

While the government's arguments are plausible, we emphasize

that the district court did not address this problem below. We

decline to consider this factual issue for the first time on

appeal. Instead, we vacate the sentences and remand to the

district court for a determination of the amount of drugs

properly attributable to each defendant under the guidelines. Of

course, we express no opinion on the outcome of this issue.

2. Weapon enhancement

Nelson argues that the district court improperly enhanced

his sentencing level by two points for possession of a firearm

during the commission of the offense. See U.S.S.G.

§ 2D1.1(b)(1). Nelson objected to the increase in the PSI, and

submitted evidence at the sentencing hearing. The district court

overruled Nelson's objection and found "it is clear that there

was a connection between [the firearm] and the drug transaction

. . . ." Nelson contends that there was no evidence showing that

the firearm was possessed during the conspiracy.

The .22 caliber firearm was found during a search of the

Cotton Club in December 1988. Nelson offered testimony at the

sentencing hearing that the firearm was located on a shelf behind

a stack of dinner plates in the kitchen area, and that, in order

to retrieve it, one would have to reach behind the stacked plates

and possibly knock them over. The testimony also indicated that

Nelson was holding the weapon as collateral on a loan of money

Nelson made to the owner of a firearm. 
20

We review the district court's factfinding, connecting the

weapon to a drug-related offense, only for clear error. 18

U.S.C. § 3742(e). Once it is established that a firearm was

present during the offense, the district court should apply the

enhancement unless it is clearly improbable that the weapon was

connected with the offense. U.S.S.G. § 2D1.1, comment. (n.3). 

Possession need only be established by a preponderance of the

evidence. United States v. Casto, 889 F.2d 562, 570 (5th Cir.

1989). Given these standards, we cannot say that the district

court's finding was clearly erroneous.

III. CONCLUSION

The district court's denial of a new trial was not an abuse

of discretion, since there was not an "extremely strong showing"

of juror incompetence. The district court's denial of Webster's

motion to suppress was correct. The evidence was sufficient to

support the jury's verdict on all counts. We therefore AFFIRM

the convictions of both defendants. Since the district court did

not consider the question whether each defendant should be held

to have known or reasonably to have foreseen that the conspiracy

involved more than two kilograms of cocaine, we VACATE the

sentences of both defendants and REMAND for further proceedings.

Convictions AFFIRMED; sentences VACATED and REMANDED.