## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1762

___________ United States of America, * Appellee, *

v. * LaVonne Roach, * Appellant. *

___________ * No. 98-1767 * Appeals from the United States

___________ * District Court for the United States of America, * Appellee, *

v. * Rodney Jackson, * Appellant. *

___________ * No. 98-1768 *

___________ * United States of America, * *

*

*

*

*

* District of South Dakota.

*

*

*

*

*

*-2-

Appellee, * v. * Kevin Eagle Tail, * Appellant. * *

*

*

___________ Submitted: October 19, 1998 Filed: December 22, 1998

___________ Before HANSEN, LAY, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge. LaVonne Roach, Rodney Jackson, and Kevin Eagle Tail appeal their convictions and sentences for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. They seek a new trial or resentencing because of claimed errors includin g admission of hearsay evidence, juror misconduct, improper j ury instructions, and several sentencing issues. We affirm. I. A one count indictment charged appellants with a conspiracy to distribut e met hamphetamine in South Dakota. The government presented evidence at tria l indicating that the conspiracy began no later than the summer of 1994 and continue d until January 1996. Its orga nization changed over time. In the beginning Mario Osario
con trolleda distribution network which moved methamphetamine from California t o Rapid City, South Dakota by way of Salt Lake City. Although Osario occasionall y travell ed to Rapid City and participated in transactions there, his associate Sergi o Gutierrez was primarily responsible for the flow of drugs and money between thePhyllis Fairbanks later married Sergio Gutierrez, but we refer to her throughout 1 this opinion as Fairbanks. -3- states. At least mont

hly and sometimes weekly, Gutierrez delivered methamphetamine to LaVonne Roach, Osario’s contact in Rapid City. Payment for the drugs was mad e by Roach to Gutierrez within a few days. Gutierrez made between 10 and 20 trip s during this period, generally carrying between 3 and 10 pounds of methamphetamin e per trip. On the return trips he carried money back to Osario. Roach distributed the methamphetamine to a number of local users and dealers, including Rodney Jackson, Kevin Eagle Tail, Phyllis Fairbanks, Patrick Peschong, Jeff 1 Mou sel, and others. Osario was often present when Mousel purchase d metham phetamine from Roach. Clay Williamson and Toby Ness became involved i n distributing the metha

mphetamine through Mousel. The dealers Roach supplied would turn to one another when she was unavailable or without drugs. The governmen t presente d evidence of transactions between Fairbanks and Eagle Tail, Mousel an d Jackson, and Peschong and Eagle Tail. Th e supply chain changed with the death of Osario on April 30, 1995. La w enforceme nt

officers had arrested him on his way into Rapid City and seized 2.7 4 pounds of 99% pure methamphetamine. Osario agreed to cooperate by making a controlle d delivery to Jeff Mousel. Instead of completing the transaction, however, he obtained a gun from Mousel and committed suicide shortly after their meeting. Afte r Osa rio’s death, Gutierrez developed another methamphetamine source and agreed t o continue supplying Roach, but he also sold to other dealers in the Rapid City area , including Jackson and Eagle Tail. Gutierrez was arrested in January 1996. After a three day trial, the jury found all three defendants guilty of conspiracy

. The def endants filed a motion for new trial based on juror misconduct. The distric t court denied that motion and a subsequent motion to reconsider. At sentencing the court found that the conspiracy involved over 42 kilograms of methamphetamine,The g overnment offered this evidence through the testimony of Ness, Agen t 2 Robert Overturf, Depu ty Lynn McLane, Peschong, Gutierrez, Terry Cuny, Fairbanks, and Williamson. -4- producing a base offense level of 38 under U.S. Sentencing Guidelines Manual § 2D 1.1(c)[U.S.S.G.]. The court gave Roach a four level enhancement based on he r leadership role in the conspiracy and Eagle Tail a two level enhancement for possession of a f irearm. After taking into account their individual criminal histories, the distric t court sentenced Roach to 30 years impri sonment and both Jackson and Eagle Tail to 25 years. Appellants appeal their convictions, the denia l of their post-trial motion for a new trial , and their sentences. They claim that they are entitled to a new trial because o f hearsay evide nce, the court’s refusal to issue a subpoena for certain bank records or to give a multiple conspirac y instruction, and juror misconduct. Appellants also claim the court erred in its drug quantity findings and in attributing drugs to them that Osario had intended to deliver to Mousel, and Rodney Jackson contends that it was wrong t o consider two misdemeanor convictions in determining his criminal history. II. A. Go vernment

witnesses testified at trial about many out of court statement s relating to drug distribution. There were statements attribu ted to Roach, Jackson, Eagle 2 Tail, Mousel, Fairbanks, Peschong, Osario, Gutierrez, Wanda Edwards, Beave r Pacheco, St eve Cordova, Pat Tracy, and others. Appellants claim that this testimon y was hea rsay and that the government failed to establish that the declarants ha d partici pated in a conspiracy with each defendant and that every statement was i n fu rtherance of a single conspiracy. They also claim the district court did not mak e suf ficient findings in ruling on these issues. We review the trial court’s evidentiar y decisions for abuse of discretion and will only reverse if an error substantiallyAt

the beginning of trial, the court indicated that objections by one defendant 3 wou ld be considered an objection by all unless a party chose to opt out or ad d something to the objection. -5- prejudiced the outcome. See United States v. Goodson , 155 F.3d 963, 969 (8th Cir

. 1998); Pittman v. Frazer , 129 F.3d 983, 989 (8th Cir. 1997). The district court addressed the admissibility of coconspirator statements a t several po ints during the proceedings, starting with an objection during the testimon y of the first government witness. When the prosecutor asked Toby Ness ab out statements by Jeff Mousel, defense counsel objected. The court overruled the objection, saying:

The objection has been made to the statement as hearsay. . . . [A ] st atement is not hearsay if made by a co-conspirator of a part y du ring the course and in furtherance of the conspiracy [citatio n omitte d]. To satisfy the requirements of [the exception], th e government must demon strate that, 1. A conspiracy existed, 2. That the defendants were part of the conspiracy; and 3. That th e declaration was made in the course of and in furtherance of th e conspiracy. These elements must be pro ven . . . by a preponderance of the evidence. . . . [S]tatements by a co-conspirator identifying a fellow conspirator, are considered to be in furtherance of a conspirac y. . . . Moreover, statements which reveal the existenc e an d progress of the conspiracy are also in furtherance of a conspirac y. The evidence so far does establish a conspiracy on the part of Mousel and Mr. Ness. Statements which were mad e identif ying others would be in furtherance of the conspiracy . . .

. The objection that testimony is hearsay is denied. Soon thereafter, Roach’s counsel requested and received a standing hearsay objection to cover every witness. 3 The c ourt again addressed the coconspirator exception during the testimony o f Sergio Gutierrez after he referred to statements by Mario Osario. Jackson’s attorneyThe transcript reference is to Fed. R. Evid. 801(b)(2)(E). There is no suc h 4 section in the rules. Rule 801(d)(2)(E) contains the coconspirator exception. It thus appears that either there was a typographical error in the transcript or that the cour t reporter heard (b) when the judge said (d). -6- objected, and the district court ruled that the evidence was admissible unde r 801(d)(2)(E). 4 At t he close of the government’s case, the defendants moved for a mistrial o r judgment o f acquittal and Jackson’s attorney argued that the government had no t es tablished the foundation for coconspirator statements because it had not shown tha t the e vidence revealed a single conspiracy instead of multiple conspiracies. The cour t replied that there was “absolutely ove rwhelming” evidence of a conspiracy to distribute methamphetamine in Rapid Ci ty and specifically found that Ness, Peschong, Gutierrez, Fai rbanks, Williamson, Mousel, and all three defendants were involved in thi s conspiracy. Later, during the charge conference, the court stated, “[U]nder United States v. Bell , I have concluded all of what would otherwise be hearsay statements [sic] an d admitted them under 80 1(d)(2)(E) as statements made in furtherance of the conspiracy,
ma de by a co-conspirator, whether an indicted or nonindicted co-conspirator.” Th e court went on to find that the conspiracy included Mou sel, Williamson, Peschong, Ness, Gutierrez, and O sario. None of the parties requested further findings or made a record of the specific points of objection they now address on appeal. An out of court statement by a coconspirator is not hearsay and may be introduced as an admission by a party opponent. Fed. R. Evid. 801(d)(2)(E). As the district court indicated, there are several requirements that a proponent must show. They are that a
co nspiracy existed, that the declarant and the defendant were both members of th e conspiracy, and that the statement was made during the course of andAp pellants claim that under the Confrontation Clause there must also b e 5 sufficient indicia of reliabil ity to admit statements of an unavailable coconspirator, but the Suprem e Court has explicitly rejected the need for a separate reliability inquiry

. Se e Bourjaily v. United States , 483 U.S. 171, 182-183 (1987) (Confrontation Clause requirements satisfied by coconspirator test). -7- in furt herance of the conspiracy. See United States v. Bell , 573 F.2d 1040, 1043 (8th 5 Cir. 1978). See also United St ates v. Jorgensen , 144 F.3d 550, 561-62 (8th Cir. 1998); Un ited States v. Escobar , 50 F.3d 1414, 1423 (8th Cir. 1994). The district court als o correctly stated that the proponent must prove these requirements by a preponderance of the evide nce. See Bourjaily v. United States , 483 U.S. 171, 175 (1987); Jorgensen , 144 F.3d at 561; United States v. Roulette , 75 F.3d 418, 424 (8th Cir.), cert. denied , 117 S. Ct. 147 (1996). A court may conditionally admit a challenged statement subject to later proof to satisfy the coconspirato r rule and defer a final ruling on admissibility until after hearing the relevant evidence. See Bell , 573 F.2d at 1044. See also United States v. Coco , 926 F.2d 759, 761 (8th Ci r. 1991); United States v. Williams , 604 F.2d 1102, 1112-13 (8th Cir

. 1979). The content of the proffered coconspirator statements may be considere d in deciding whether a particular conspiracy has been established, see Bourjaily , 483 U.S. at 181, but such a statement “‘cannot provide the sole evidentiary support for its ow n admissibility.’” United States v. Garbe tt , 867 F.2d 1132, 1134 (8th Cir. 1989) (quoting Bourjaily , 483 U.S. at 184 (Stevens, J., concurring)). Explicit rulings on whether the government has ultimately met its burden o f establishing the required foundation for the challenged statements ensure a clear record for review, but a district court is permitted some flexibility in the manner in which i t makes its rul ings. See, e.g. , Roulette , 75 F.3d at 424-25. The failure to make ultimate findings wil l only be reversible error if it substantially prejudices the rights of th e parties. See Jorgensen , 144 F.3d at 561-62; Roulette , 75 F.3d at 425. The record must nevertheless reflect careful consideration of the foundational requirements in light of-8-

the parties’ objections and re quests for rulings. See Roulette , 75 F.3d at 424-25 & n.2.
At trial appellants failed to make spec ific objections of the type they now discuss on appeal. Instead, they reque sted and relied upon a broad standing objection covering all witnesses and statements. A standing objection may be appropriate to cover the same
rec urring issue, but it cannot protect a party where there are distinct foundatio n questi ons involved. In such instances, an objecting party must alert the court to th e particular points on which an objection is based. The district court showed that it understood the required foundation fo r conspirator statements. At the time of the first hearsay objectio n, the court clearly stated the requirements for admission of coconspirator statements and the burden of proof. It als o made findings then that Ness and Mousel were involved in a conspiracy and tha t certain sta tements were made in futherance of it. It later made findings that the thre e defendants and Osario, Gutierrez, Peschong, Fairbanks, and Williamson were involved in a single conspiracy. It overruled hearsay objections to statements qualifying unde r Rule 801(d)(2)(E) and rejected the contention that statements were hearsay because they
were made in connection with multiple conspiracies. No party objected to the court’s final f indings during the charge conference or asked for any amplification. Se e Roulette , 75 F.3d at 425 & nn. 2-3. Although it would have been helpful if the district court had made more detailed findings, our review of the record indicates that i t substantially compl ied with the requirements of our case law. See Roulette , 75 F.3d at 424. The convicted parties now claim on ap peal that approximately thirty-five hearsay statements were admitted, but study of the transcript re veals that the great majority were p r operly admitted under the coconspirator exception. Twenty-seven of the statements
were made by declarants specifically found by the trial court to be coconspirators and were mad e to customers or colleagues for the purpose of furthering the business of the conspiracy. See Escobar , 50 F.3d at 1423; United States v.-9-

Jackson , 67 F.3d 1 359, 1364 (8th Cir. 1995), cert. denied , 517 U.S. 1192 (1996). The evi dence supports the court’s findings. Although the district court made no specifi c fin dings about three challenged statements of Edwards and Tracy, there is ampl e evidence in the record to show that they were members of the conspiracy and that the statement s were made in its furtherance, including the content of the statement s themselves which related to the drug distribution network. See Bourjaily , 483 U.S. at 181. Appellants assert that Terry Cuny repeated statements by unnamed persons, but it appears his testimony concerned what defendant Jackson had said about dealing t o unnamed customers and was therefore properly admitted under the coconspirato r exception. Two of the challenged statements were admissible on other grounds. Fairbanks’s testimony that Beaver Pacheco had asked her to sell drugs involved a verbal act; th e government offer

ed the statement not to prove its truth, but that it had been made. See Fed. R . Evid. 801(c) advisory committee’s note on 1972 proposed rule (verbal act s outside hea rsay definition); United States v. Robinson , 774 F.2d 261, 273 (8th Cir

. 1985)

. Osario’s post-arrest statement to agent Overturf about deliverin g methamphetamine to Mousel was not made in furtherance o f the conspiracy, but it could have been admitted as being against penal interest under Fed. R. Evid. 804(b)(3). This statement did not directly implicate any of t he appellants in any event, and its admission would have been h armless error at most, given the weight of evidence in the case. See United States v. White , 11 F.3d 1446, 1451 (8th Cir. 1993). There appear to be several statements that shou ld not have been admitted without
more found ation. Fairbanks testified that Steve Cordova had told her Gutierrez wa s dealing for Osario; this appears to have be en hearsay, but it added almost nothing to the
case because Gutierrez himself had admitted that. Fairbanks also testified to two sets of statements by unnamed individuals, the first regarding purchases from Jackson an d the second regarding a fight involving Osario, Roach, and Jackson. Coconspirato r statements by anonymous declarants may sometimes be admissible, but here there was no evide nce showing that these unnamed persons were actually part of the conspiracy.-10-

Cf. Unite d States v. Helmel , 769 F.2d 1306, 1313 (8th Cir.1985); United States v

. Wilson , 532 F.2d 641, 645 (8th Cir. 1976). Given the weight o f other evidence properly in the case, admission of these particular statements was no more than harmless error, however. B. Appell ant Jackson also claims that the district court committed reversible erro r by admitting out of court statements by its witness Hope Red Leaf. After she answered preliminary questions at trial, she refused to say whether she had received any drug s fromJackson . She was eventually held in contempt, and the court declared he r una vailable within the meaning of Fed. R. Evid. 804. The government then calle d De puty McClane to testify about statements she had made in her interrogation

. McCla ne testified that Red Leaf had admitted purchasing methamphetamine fro m Ja ckson in half-gram quantities on at least ten occasions and giving him stolen good s in exchange for drugs. Red Leaf also said that she ha d seen Jackson in possession of up to half an ounce of methamphetamine at a time, that h e had told her that he was working with Osario to bring in large quantities of methamphetamine, and that he had asked his mother to deposit some of the money he had made. The gover nment contends that this testimony of McLane was admissible unde r 804(b)(3) because Red Leaf’s statement was against her penal interest. Although a statement may fail to qualify a s against interest if motivated by the desire to curry favor with the au thorities, see United States v. Riley , 657 F.2d 1377, 1384 (8th Cir. 1981 ) (citin g Fed. R. Evid. 804(b)(3), Advisory Committee Notes Exception (3)), th e determination of credibility and motivation is generally within the discretion of the trial court. Red Leaf’s confession that she had traded stolen goods for methamphetamin e could qualify as a statement against interest, b ut the other statements not implicating her in illegal activity were not admissible under this exception. See Williamson v. United States , 512 U.S. 594, 601 (1994). Nevertheless, admission of this evidence was-11-

harmless , since numerous witnesses testified about Jackson’s involvement with th e conspiracy and his drug sales and Jackson himself had admitted to some. C. Ap pellant Jackson claims the court erred in permitting Deputy McLane t o corroborate testimony by prosecution witness Sergio Gutierrez. At trial Jackson’ s counsel had asked Gutierrez whether he had mentioned Jackson in an interview after his 1995 arrest. Gutierrez said he had. Counsel then asked whether he had also talke d about Jackson after his January 1996 arrest. Gutierrez respon ded, “The first arrest I talk [sic] about him.” The government later asked McLa ne to testify about Gutierrez’s 1996 interview and what he had then sa id about Jackson. When the defense raised a hearsay objection, the prosecutor stated that the evidence was offered to rebut an inference o f recent fabrication. Federal Rule of Evidence 801(d)(1)(B) permits the use of prior consisten t statements to rebut

an express or implied charge of recent fabrication. A witness other than the declarant is permitted to testify to the prior statement. See United States v

. Lanier , 578 F.2d 1246, 1256 (8th Cir. 1978). T he prior statement must have been made before the alleged improper motive to fabricate. See Tome v. United States , 513 U.S. 150, 158 ( 1995). Evidence that Gutierrez’s statements in his January 1996 intervie w was consistent with his trial tes timony was relevant for rehabilitation since the desire to reduce his sentence on his drug charge could have given him a motive to lie at trial. The district court did not abuse its discretion in admitting McLane’s testimony. D. Jackson’s re quest for a new trial is also based on the denial of his attempt t o subpoena his mother’s bank records to show that she had not deposited money on hi s behalf. He sought the subpoena late in the trial after Deputy McLane had related Red Leaf’s statement tha

t Jackson asked his mother to hold some unspecified portion of his-12-

drug proceeds. His mother was ex pected to testify that she had not held money for him during the relevant period, and Jackson sought the bank records to bolster her testimony. A district court may, in its discretion, determine that the burden of producin g su bpoenaed records greatly outweighs any relevance they may have to the case. Se e United States v. Kalter , 5 F.3d 1166, 1169 (8th Cir. 1993); Fed. R. Crim. P. 17(c). In this case, denial of the subpoena was well within the court’s discretion. It was late in the trial , the evidence would have been cumulative, and it could not have bee n conclusive on the issue. E. Appellants cl aim that they are entitled to a new trial based on the court’s refusal to give a multiple conspiracy instruction. The defendants contend that Gutierre z initiate d an independent conspiracy when he obtained a supply source separate fro m Osario and began selling to new buyers. They also say that the dealers compete d among themselves and thus participated in more than one conspiracy. If the evidence supports a single conspiracy, the failure to give a multipl e conspiracy i nstruction is not reversible error. See United States v. Cabbell , 35 F.3 d 1255, 1262 ( 8th Cir. 1994). A multiple conspiracy instruction is not required jus t because t here are a number of sources and independent dealers if there was a share d objective to “sell large quantities of drugs.” Cabbell , 35 F.3d at 1262. See also United States v . Lucht , 18 F.3d 541, 552 (8th Cir. 1994). A single conspiracy may exist even if the parti cipants and their activities change over time, and even if many participant s are unaware of, or uninvolved in, some of the transactions. See Cabbell , 35 F.3d a t 1262; Un ited States v. Adipietro , 983 F.2d 1468, 1475 (8th Cir. 1993). Dealers wh o compete with one ano ther may be members of the same conspiracy. See United States v. Banks , 10 F.3d 1044, 1054 (4th Cir. 1993); United States v. Ed wards , 945 F.2d 1387, 1393 (7th Cir. 1991).-13-

As in Uni ted States v. McCarthy , 97 F.3d 1562, 1571 (8th Cir. 1996), cert

. denied , 117 S. Ct. 1011, 1284 (1997), the participan ts in this conspiracy knew the drugs they distributed came th

rough a “larger distribution framework already in place,” knew
some of the other members of the conspiracy, and all furthered the shared objective of distributing drugs received from a common s ource. They provided one another ongoing aid in promoting the conspiracy. Cf. United States v. North , 900 F.2d 131, 134 (8th Cir. 1990). Roach facilitated sales to Mousel and encouraged Fairbanks to purchase from Ea gle Tail. Mousel purchased primarily from Roach, but also purchased resal e quantities from Eagle Tail and Jackson. Peschong suppl ied drugs to, and received drugs fro m, both Eagle Tail and Roach. At one point Jackson attempted to re-establish a business relationship between Mousel and Osario after a falling out. On the ev idence in the record, the jury could have found an ongoing, facilitative relat ionship between parties who were aware of the scope of one another’s activities

. As the district court noted during the charge conference, a single overall conspiracy can be made up of a number of separate transactions and of a number of groups involved in separate crimes or a cts. The court did not err by refusing to give a multiple conspiracy instruction. III. The appella nts also appeal the denial of their post-trial motion for a new tria l because of juror misconduct. After deliberating for about four hours, the jury sent the court a note saying it was unable to agree on a verdict. After consulting counsel, th e co urt gave an Allencharge and told the jury to continue deliberating. The juror s returned with their verdicts after another hour of deliberation. They were polle d individually and all affirmed that their verdict for each defendant was guilty. Some time later, juror Cleo Gayton submitted an affidavit stating that she ha d been unwilling to convict the de fendants but that the other jurors had pressured her into changing her vote. She claimed that one juror told her the judge would incarcerate her-14-

if she failed to do her civic duty and v ote to convict. She also claimed there were racial
o v ertones in the jury room. Gayton was one of two Native American jurors, and for a time she was the only holdout against convicting the three Native American defendants. She said other jurors made references to her race and one said “ [i]t was ten white people
versus o ne Indian.” She is a diabetic, and other jurors told her that she could ge t something to eat with them after a verdict was returned. The trial court denied th e motion for new trial. We review the denial of a motion for new trial based on alleged juror misconduct for ab use of discretion. See Wolff v. Brown , 128 F.3d 682, 686 (8th Cir. 1997)

. Federal R ule of Evidence 606(b) codifies the common law rule against use of juro r testimony to impeach a verdict. The rule on ly allows jurors to testify about “extraneous pre judicial information” or “outside influence improperly brought to bear upon an y juror.” Fed. R. Evid. 606(b); see also Tanner v. United States , 483 U.S. 10 7, 121 (1987) (ev idence inadmissible that jurors slept and consumed drugs and alcohol in course o f trial and deliberations); United States v. Thomas , 946 F.2d 73, 75-76 (8th Cir. 1991)

. Because Gayton’s allegations all concern either the jury’s deliberations or casua l conversation in the jury room, the district court did not abuse its discretion in denying the motion for a new trial. IV. Appellant s also raise sentencing issues. They contend that they are entitled t o resentencing be cause of erroneous findings on drug quantities, and Jackson claims that two misdemeanor convictions should not have be en counted in his criminal history. We review a sentencing court’s fact findings for clear error and may affirm on any ground sup ported by the record. See United States v. Williams , 109 F.3d 502, 509 (8th Cir

. 1997).The distr ict court determined that the conspiracy involved a total of 42.1 5 kil ograms of methamphetamine, producing a base offense level of 38 under U.S.S.G

. § 2D1.1(c). It calculated this amount by including the amount of methamphetamine-15-

seized from Osario wh en he was stopped near the Rapid City airport and the quantities it found established by Gutierrez’s testimony about the frequency and volume of hi s deliveries to South Dakota. Appellants argue that the court erred in attributing to each of them all the drugs transported by Osario and Gutierrez. They also claim that the evi dence presented at trial
was not s pecific enough to allow determination of precise drug quantities becaus e Gutierrez gave

numerical ranges for both the number of deliveries and the quantities in each delivery. Finally, they claim that the court erred in stating that the substanc e Osario carried on his last trip was “ice” methamphetamine. The sentencing court can consider not only a defendant’s own actions, but als o the related activity of o thers, including all reasonably foreseeable acts and omissions in furtherance

of jointly undertaken criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B). In the context of a drug conspiracy, a defendant may be held accountable for all dru g transactions within the scope of the conspiracy. See United States v. Grajales-Montoya , 117 F.3d 356, 365 (8th Ci r.), cert. denied , 118 S. Ct. 446, 586 (1997); United States v. Granados , 962 F.2d 767, 770 (8th Cir. 1 992). The trial court is entitled to estimate drug quantities where

the amount actually seized fails to represent the scale of the offense if th e preponderance of the evidence supports the quantities. See U.S.S.G.§ 2D1.1 , comment. ( n.12); United States v. Simmons , 964 F.2d 763, 771 (8th Cir. 1992). Th e court may make a specific numeric determination of quantity based on imprecis e evidence, see United States v. Ayers , 138 F.3d 360, 363 (8th Cir.), cert. denied , 119 S. Ct. 219 (1998), so long as the record reflects a basis for the court’s dec ision. See United States v. Randolph , 101 F.3d 607, 609 (8th Cir. 1996). The trial court was entitled to rely upon its familiarity with the evidence i n determining drug quantities, whether or not its findings corresponded with the presentence investigationAlthough the court’s findings for quantity were the same as those in the PSR, 6 it declin ed to adopt other recommendations in the PSR, including an obstruction o f justic e enhancement for Jackson and weapon enhancements for Roach and Jackson

. The government’s exp ert witness, Dr. Jack Gaines, testified that the substance 7 was not ice, but the PSR described it as ice because of its level of purity. Under the Sentenci ng Guidelines, only d-methamphetamine of greater than 80% purity qualifies as ice. See U.S .S.G. § 2D1.1(c), comment. (n.C). The PSR did not discuss whether the drugs w ere d-type or l-type methamphetamine. If the quantity found on Osario’s body was only a methamph etamine mixture instead of ice methamphetamine, the total drug qu antity would have been 30.98 kilograms. This would still be more than th e required threshold of 30 kilograms for level 38. See U.S.S.G. § 2D1.1(c). -16- re port (PSR) recommendations. See United States v. Mills , 987 F.2d 1311, 1317 (8th Cir. 1993). 6 Th e district court’s findings of drug quantities were supported by the evidence. Bec ause Roach, Jackson, Eagle Tail, Mousel, and Osario were members of the sam e conspirac y, the court properly attributed the quantity Osario was transporting at hi s de ath to each defendant in the sentencing calculation. Even though the quantit y evidence was not all precise, the cou rt was entitled to rely on it in making its estimation of the amount of drugs for which each appellant was responsible. Even though it was not e stablished that Osario’s last package was “ice” methamphetamine, its incorrec t classification would not have affected any of the appellants’ base offense levels. 7 Finally, appellant Jackson claims that two of the three state co urt convictions used to rai se his criminal history to category II were insufficiently documented. A distric t court’s f actual findings for sentencing must be supported by a preponderance of th e evidence, and we reverse only for clear error. See United States v. Whatley , 133 F.3d 601, 606 (8th Cir.), cert. denied , 118 S. Ct. 2347, 2357 (1998); United St ates v. Hulshof , 23 F.3d 14 70, 1472 (8th Cir. 1994). A sentencing court is not bound by the rules o f evidence and may ev en consider hearsay in making its determinations. See U.S.S.G. § 6 A1.3(a). Although the local clerk’s office no longer had a record of-17-

Ja ckson’s 1988 petty theft conviction, that misdemeanor is contained in the records of the Rapid City Police Department and the South Dakota Division of Crimina l Investigation. The clerk’s office produced a computer record of his 1990 marijuan a possessio n

conviction but could not locate the supporting file. Absence of record s underl ying a conviction is not enough to create a presumption of invalidity. See Parke v. Raley , 506 U.S. 20, 30 (1992). Jackson does not claim that he was never convicted of t hese misdemeanors, and he has given us no reason to believe that the conviction s were unco nstitutionally obtained. He has not shown the district court erred i n considering these convictions in computing his criminal history category. V. Th e record contains overwhelming evidence that appellants were involved in a large sca le drug distribution conspiracy that imported over 30 kilograms o f methamphetamine into the Rapid City area. Appellants have not shown reversible error
a t their trial or in the course of their sentencing proceedings or that they are entitled to a new trial or resentencing. The judgments are therefore affirmed.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.