### The Honorable Ann D. Montgomery, United States District 1 

### Judge for the District of Minnesota, sitting by designation. No. 96-2738
United States of America, * * Appellee, * * v. * * Donald E. McCracken, II, * * Appellant. *
Appeals from the United States No. 96-2743 District Court for the

___________ Western District of Missouri. United States of America, * * Appellee, * * v. * * Donald E. McCracken, III, * * Appellant. *

Submitted: January 15, 1997 Filed: April 2, 1997

Before WOLLMAN, and HANSEN, Circuit Judges, and MONTGOMERY, Distric t 1 Judge.

MONTGOMERY, District Judge.

Donald E . McCracken, II and Donald E. McCracken, III, appeal thei r convictions and sente nces on drug charges. Both defendants challenge the sufficiency of the evidence to support their

### The Honorable Fernando J. Gaitan, Jr., United States 2 

### District Judge for the Western District of Missouri.
-2- convictions and the admission into evidence of statements made by Donald E. McCra cken, II. Defendants also contest the district court’s 2 applic ation of the two-level enhancement for possession of firearms i n connection with a drug offense pursuant to U.S.S.G. § 2D1.1(b)(1). Upon review, we affirm the convictions and the sentences.

I. BACKGROUND

On August 27, 1994, Detective Jeffery Seever, working in a n undercover capacity for the Jackson County Drug Task Force, was introduced by a co ntact to Scott Walker for the purposes of purchasin g methamph etamine. Walker made a brief phone call and then informe d Detect ive Seever that he could obtain methamphetamine. Walker the n direct ed Detective Seever to drive to 11505 Grandview, Kansas City , Missouri.

Detective Seever and Walker entered the house at 11505 Grandvie w where defendant Donald E. McCracken, III (“McCracken Junior”) was seated
on a couch in the living room. McCracken Junior’s girlfriend, Carme n Radf ord, was also present in the house. Walker sat on a chair next t o McCracken Junior, while Detective Seever sat on the other side of the room

. Walker and McCracken Junior spoke to each other in quiet tones such that Detective Seever coul d not overhear their conversation. McCracken Junior and Walker then left the living room and walked toward the southeast part of the residence.
A short time later, Walker returned to the living room and presented to Detective Seever a substance which Walker represented

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to be a half-ounce of methamphetamine. Walker informed Detective Seever that the cost of the methamphetamine was $1,150. Detective Seever pai d Walker $650 for his p ortion of the methamphetamine and Walker returned to the southeast part of the house. Walker eventua lly returned to the living room with a blue parc el later determined to be methamphetamine wrapped in blue gauze.
Detective Seever and Walker were leaving the residence when Def endant Donald E. McCracken, II (“McCracken Senior”) and his girlfriend, Melissa Fox, arrived and ente red the residence. McCracken Senior asked Detective Seever and Walker if they had noticed the police car parked in the vicinit y of the house. McCracken Senior then advised Detective Seever and Walker that if the police pursued them, they should flee in order to dispose of the me thamphetamine. McCracken Senior recommended that “it’s better t o have a car charge than a Class A or B felony drug charge.”

Detective Seever and Walker left the residence and Detective Seever received his portion of the methamphetamine. De tective Seever returned to the Task Force headquarters where the substance was tested and proved to be 7.7 grams of methamphetamine.
Subsequently, on August 29, 1994, De tective Seever obtained a search warrant for 11505 Grandview. The search warrant was executed on September 2, 1994. Six individuals were present at the re sidence during the search, includ ing McCracken Junior, Melissa Fox and Carmen Radford. McCracke n Senior was not present during the search. McCracken Junior was in th e living room when officers first entered the residence. From the livin g
roo m, officers recovered a loaded 9mm pistol and six grams o f methamphetamine.

### -4- Officers searched the southwest bedroom of the house where the y
reco vered two loaded firearms: (1) an assault rifle mounted over th e archwayof the bedroom door with one round in the chamber and a magazine holding 31 rounds, and (2) a .45 caliber handgun in a holster nailed to th e headboar d of the bed containing a magazine loaded with six rounds

. Officers also recovered from a heater located a few feet from the bed, fou r small packages wrapped in blue gauze containing a combined total of 11 0 grams of methamphetam ine. In the bedroom closet officers recovered a box with the name “Don McCracken” on it, as well as men’s clothing bearin g emblems s uch as “Shadow,” “S and G” and “FYVM.” Detective Seever’ s in vestigation ultimately determined that “Shadow” was a nickname fo r McCracken Senior, and that “S and G” and “FYVM” were abbreviation s relating to McCracken Senior’s business. Officers also discovere d photograph albums containing pictures of McCracken Senior as well as a photograph of Melissa Fox on the headboard of the bed.

Office rs also searched the northeast bedroom of the residence

. Officers discovered a pair of jeans containing $1,420 in United State s
currenc y and a billfold holding identification documents of McCracke n Junior. The bedroom closet contained two safes. One safe held more than $30, 000 in United States currency. The money was divided into thre e bundles wrapped in blue gauze. The safe also co ntained an envelope marked “Pistol,” a nickname for McCracken Junior, and documents with the name of “Donald E. McCracken, II” on the front cover as well as a key chain marked “Shadow Motorcycle.” The second safe contained seven to eight collector’s gun s. A search of the southeast bedroom revealed a set of electroni c scales and multiple rolls of small plastic bags. A safe in the roo m contained a box labeled “Shadow.”

### -5- A few m onths later, on March 10, 1995, Officers conducted a searc h of 9625 Grandview, Kansas City, Missouri. McCracken Senior was presen t during the search. A search of the attic area of the residence produced three bags. One bag contained four packages wrapped in black tape. The packages consisted of a total of 110 grams of methamphetamine. The other two bags contained 25 grams of methamphetamine a nd $5,200 in United States currency.

Officers also searched the northeast bedroom of this residence an d discovered a safe containing a book bearing the name “Shadow.” Locate d inside the book was a copy of the earlier search warrant for 1150 5 Grandview and credit cards imprinted with the name “Donald McCracken” on them as well as the abbreviations “S an G” and “FYVM.” Officers discovere d a semi-automatic handgun with a loaded magazine hanging over the headboard of the bed. In the living room, officers found a wallet with a Missouri drivers license for “Donald E. McCracken” and $1,060 in United State s
cur rency. Officers also discovered 3.9 grams of methamphetamine on th e coffee table.

Detective Steve Santoli interviewed McCracken Senior at the res idence during the search. McCracken Senior told Detective Santoli that he ha d been living at 9625 Grandview for approximately two months.
On May 25, 1995, defendants were cha rged in a five count indictment. Follow ing the trial, McCracken Senior was convicted of conspiracy t o distri bute and to possess with intent to distribute methamphetamine i n violation of 21 U.S.C. § 846 and two counts of possession with intent to distribute methamphetamine in violation

### The district court entered a judgment of acquittal 3 

### notwithstanding the verdict as to a charge of use and carrying of firearms in violation of 18 U.S.C. § 924(c). -6- of 21 U.S. C. § 841(a)(1). The district court sentenced him to a term of 3 imprisonment of 117 months and five years supervised release. McCracken Junior was convicted of conspiracy to distribute and to possess with inten t to distribute methamphetamine in violation of 21 U.S.C. § 846(a)(1) an d aiding and abetting the distribution of methamph etamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentence d McCrac ken Junior to 78 months incarceration and five years supervise d release. Defendants now appeal the convictions and sentences.

II. DISCUSSION

A) Sufficiency of the Evidence
Both defendants challenge the sufficiency of the evidence with regard to the conspiracy convictions. McCracken Junior also challenges th e sufficiencyof the evidence with respect to his conviction of aiding and abe tting distribution of methamphetamine. McCracken Senior similarl y contends the evidence was insufficient with resp ect to his convictions for possession with intent to distribute methamphetamine.

In reviewing a sufficiency of the evidence claim, we view th e evidence in the light most favorable to the verdict. United States v

. Jenk ins , 78 F.3d 1283, 1287 (8th Cir. 1996) (citing United States v

. Bascope-Zurita , 68 F. 3d 1057, 1060 (8th Cir. 1995), cert. denied , U.S.

, 116 S.Ct. 741, 133 L.Ed.2d 690 (1996)). The verdict is given th e benefit of all reasonable inferences that

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cou ld have been drawn from the evidence presented. Id. “Reversal i s app ropriate only if we conclude that a reasonable fact-finder must hav e entertained a reasona ble doubt about the government’s proof of one of the offense’s essentials elements.” Id. (internal quotations omitted).

In or der to prove the existence of a conspiracy, “‘the governmen t must show an agreement between at least two people and that the agreement’ s objective was a viola tion of the law.’” Jenkins , 78 F.3d at 1287 (quoting United States v. Escobar , 50 F.3d 1414, 1419 (8th Cir. 1995)). Thi s agreement may be prov ed by either direct or circumstantial evidence. Id. In fact, proof of the agreement often must be im plied from the surrounding circumstances. Escobar , 50 F.3d at 1419.

The government introduced sufficient evidence against defendant s establ ishing a conspiracy between both defendants and Walker. Walke r brought Detective Seever to 11505 Grandview for the express purpose o f purchasing methamphetamine. McCracken Junior wa s present at the residence and accompanied Walker to the southeast part of the house from where Walke r returned with methamphetamine. The search of th e residence later revealed methamphetamine, scales and plastic baggies in t he southeast and southwest bedrooms. As Detective Seever and Walker left the residence with th e methamphetamine, McCr acken Senior arrived at the house. McCracken Senior then immediately warn ed Detective Seever and Walker about the presence of a police car and advised them to dispose of the methamphetamine if pursued by police officers.
The gover nment also presented evidence that both defendants resided at 115 05 Grandview. McCracken Senior’s daughter testified that bot h defendants lived at 1 1505 Grandview in August and September of 1994. The southwest bedroom contained personal

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posses sions of McCracken Senior and in that bedroom officers recovere d methamphetamine wrapped in blue gauze and two loaded firearms. Possession s bel onging to McCracken Junior were found in the northeast bedroom wher e office rs discovered a safe containing $30,000 divided in three bundle s wrappe d in the characteristic blue gauze. The methamphetamine earlie r purchased by Detective Seever had also been wrapped in blue gauze. When viewed in a light most favorable to the verdict, the evidence presented at trial of the events on August 27, 1994 and the s eizure of methamphetamine, money, guns and scales from a residence occupied by both defendants wa s suffic ient to support the jury’s conclusion that the defendants wer e involved in a conspiracy to distribute methamphetamine.

McCrackenJunior alleges there was insufficient evidence to support his conviction for aiding and abetting the distribution of methamphetamine

. To sustain a convicti on for aiding and abetting with intent to distribute drugs, the government must prove: “‘(1) that the defendant associate d hims elf with the unlawful venture; (2) that he participated in it a s something he wished t o bring about; and (3) that he sought by his actions to make it succeed.’” United States v. Duke , 940 F.2d 1113, 1117 (8th Cir. 1991) (quoting United States v. Lanier , 838 F.2d 281, 284 (8th Cir. 1988))

.

In examining the evidence in the light most favorable to th e government, the facts sufficiently establish that McCracken Junio r associated and then participated with Walker in distributin g metham phetamine. Walker brought Detective Seever to a residence wher e McCracken Junior was present for the purpose of purchasing methamphetamine

. Walker talked with McCracken Junior, left the living room with McCracken Junior, and then returned with a sample of methamphetamine for Detective Seever. Detective Seever gave Walker some money, Walker returned to the southeast portion of the house and then returned with the methamphetamine wrapped in blue

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gauze. This configur ation of physical movements and exchange of money is strong circumstantial evidence from which a jury could reasonably fin d McCracken Junior to b e Walker’s source of supply for the methamphetamine. The ev idence is sufficient to support McCracken Junior’s conviction o n aiding and abetting with intent to distribute methamphetamine.

McCracken Senior contends that insufficient evidence exists t o suppo rt his conviction on two counts of possession with intent t o dis tribute methamphetamine in violation of 21 U.S.C. § 841(a)(1)

. McCracken Senior was charged with possession of the methamphetamine seized from11505 Grandview on September 2, 1994 and the methamphetamine seized from 96 25 Grandview on March 10, 1995. McCracken Senior specificall y argues that the government did not sufficiently provide evidence that he possessed the methamphetamine.

To convict McCracken Senior on a vio lation of 21 U.S.C. § 841(a)(1), the government had to prove that he knowingly possessed the methamphetamin e with the intent to distribute. United States v. Ojeda , 23 F.3d 1473, 1475 (8th Cir. 1994) (citing United States v. Brett , 872 F.2d 1365, 1369 (8th Cir. 1989)). Proof of constructive possession is sufficient to satisfy th e element of knowing possession. United States v. Perkins , 94 F.3d 429, 436 (8th Cir. 1996) (citing United States v. Townley , 942 F.2d 1324, 1325 (8th Cir. 1991)). Constructive possession of drugs can be established if a person has “ownership , dominion or control over the contraband itself, or dominion over the pre mises in which the contraband is concealed.” Ojeda , 23 F.3d at 1475 (citing United States v. Schubel , 912 F.2d 952, 955 (9th Cir. 1990)).

There is sufficient circumstantial evidence to support a conclusion that McCracken Senior constructively possessed the

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methamphetamine. The government produced testimony from McCracken Senior’ s daughter that in August and September of 1994, McCracken Senior lived at 11505 Grandview. The methamphetamine seized from 11505 Grandview wa s
re covered from a bedroom containing various possessions belonging t o McCracken Senior. With respect to the 110 grams of methamphetamine seize d from9625 Grandview, McCracken Senior informed Detective Santoli that he lived at 9625 Grandvi ew. Further, personal items with McCracken Senior’s nickname “Shadow” wer e recovered from a safe located in a bedroom at 9625 Grandview. In both instances, the testimony and evidence supports th e jury’s verdict that McCracken Senior had sufficient dominion over th e premises to establish constructive possession of the methamphetamine.

B) Enhancement for Possession of Firearms

Both defendants contend that there was insufficient evidence of a n adequate nexus between the guns seized and the alleged criminal activity to support the district court’s enhancement of t heir offense levels by two points pursuant to U.S.S.G. § 2D1.1(b)(1).

Federal S entencing Guideline § 2D1.1(b)(1) calls for an increase of two levels to a person’s base offense level for some drug related crimes when “a dangerous weapon (including firearm) was possessed.” See United States v. Payne , 81 F .3d 759, 763 (8th Cir. 1996). Application Note 3 to the guidelines explai ns that: “[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon wa s
con nected with the offense.” Id. The government bears the burden o f proving by a preponderance of the evidence that the weapon was present and that it is probable that the weapon was connected with the drug

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charge. Id. (quoting United States v. Hayes , 15 F.3d 125, 127 (8th Cir.), cert. denied , U.S. , 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994)).

Lac k of proof of use or actual possession does not prohibit a § 2D1.1(b)(1) adjustment; enhancement for weapons possession may be based on const ructive possession, which includes ownership, dominion, or contro l
over the item, or dominion over the premises. United States v. Luster , 89 6 F.2d 1122, 1129 (8th Cir. 1990) (citations omitted). A district court’s deter mination that a defendant possessed a firearm for purposes of a § 2D1.1(b)(1) enhanceme nt will be reversed only if the decision was clearly
erroneous. Id.
The government placed into evidence three loaded firearms seize d from a residence where both McCracken Senior and McCr acken Junior resided. Two of the firearms were found in a room that the go vernment established to be McCracken Senior’s bedroom. Located in this bed room was also 110 grams of methamphetamine. McCracken Junior was present i n the residence during the search when the officers seized the three firearms and the methamphetamine

. More specifically, McCracken Junior was present in the living room where officers seized a loaded firearm within close proximity of six grams o f metham phetamine. The district court’s application of the two leve l enhancement was not clearly erroneous, according ly, we affirm the district court’s determination.

C) Admission of Statements Made by McCracken Senior

Defendant s contend that the district court abused its discretion in admitting into evidence McCracken Senior’s statements of August 27, 1994 where he warned and advised Detective Seever and

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Walker about the pres ence of a police car near the residence. Defendants mainta in that the admission of these statements violated their Sixt h Amendment right of confrontation. Defendants argue that the statements ar e hearsay which fall outside the co-conspirator exception to the hearsay rul e under Federal Rule of Evidence 801(d)(2)(E). Moreover, defendants assert that the trial court erred by failing to make the proper Bell finding s before ultimately admitting the statements into evidence. United States v. Bell , 573 F.2d 1040 (8th Cir. 1978) (establis hing the procedure for the admissi on of co-conspirator statements under Federal Rule of Evidenc e 801(d)(2)(E)).

We review

a district court’s determination to admit evidence under the deferential abuse of discretion standard. United States v. Johnson , 28 F.3d 1487, 14 98 (8th Cir. 1994), cert. denied , U.S. , 115 S.Ct

. 768, 130 L.Ed.2d 664 (1995),(citing United State s v. Layne , 973 F.2d 1417, 1421-22 (8th Cir. 1992), cert. denied , U.S. ,113 S.Ct. 1011, 12 2 L.Ed.2d 160 (1993)). Unless there is a clear and prejudicial abuse o f discretion, the district court’s decision will be affirmed. Id.

Rule 801 (d)(2)(E) of the Federal Rules of Evidence provides that a statement of a co-con spirator is admissible if the trial court determines by a preponderance of the evidence that “the sta tement was made during the
course and in furtherance of a conspiracy to which the declarant and the defendant were parties.” United States v. Roule tte , 75 F.3d 418, 425 (8th Cir.), cert. denied , U.S. , 117 S.Ct. 147, 136 L.Ed.2d 93 (1996 ) (citations omitted). As explained by the Court in Bell , the trial court may conditionally admit the hearsay statements o f alleged co-conspirators, subject to a final ruling on the record that the statements are admissible pursuant to the co-conspirator exception to the hearsay rule. Id. Th e procedures outlined in Bell are

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flexible and do not require reversal for failure to follow those procedure s absent a sh owing of prejudice. Id. If the record indicates that a defendant failed to s pecifically request a Bell ruling, but made a motion for acqu ittal, we will consider the district judge’s denial of th e acquit tal motion as substantial compliance with the Bell holdings, an d employ a plain-error standard of review. UnitedStates v. Ortiz-Martinez , 1 F.3d 662, 673 (8th Cir.), cert. denied , 510 U. S. 936, 114 S.Ct. 355, 126 L.Ed.2d 319 (1993).
As previously addressed, the governm ent sufficiently established the existence of a conspiracy involving both defendants. McCracken Senior’s comments were statements of warning and advice r egarding the possession of drugs. Such comments are not idle conversation or insignifican t declarations. It is clear that the statements made by McCracken Senior,
as related at trial by Detective Seever, were made during the course and in furtherance of the conspiracy. As such, the statements were admissible pursuant to Rule 801(d)(2)(E).

Defendants admit they did not make an explicit request for a Bel l finding at the end of trial. Defendants did, however, assert an ongoing objection to the admission of co-conspirator statements and argued a motio n for judgment of acquittal. The district court denied the motion. We infe r fromthe denial of the acquittal motion the requisite Bell findings an d
re view for plain error. In light of the evidence establishing a conspiracy, we do not find plain error in the admission of the testimony, and co ncomitantly, that defendants were not prejudiced by the distric t court’s failure to follow Bell procedures.

Defen dants maintain that the admission of McCracken Senior’ s conspiratorial statements violated McCracken Junior’s rights

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pursuant to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 Led.2 d 476 (1968). The Supreme Court in Bruton explained that a nontestifyin g codefendant’s confess ion expressly incriminating the defendant introduced at a joint trial, violates that defendant’s Sixth Amendment right o f confrontation. Bruton , 391 U.S. at 135-136, 88 S.Ct. at 1627-1628

. Bruton , however, does not mandate the exclusion of all statements made by
a code fendant; if the codefendant’s statement does not incriminate th e defendant, Brutondoes not apply. United States v. Flaherty , 76 F.3d 967, 972 (8th Cir. 1996)(citing Escobar , 50 F.3d at 1 422). The statements made by McCracken Senior do not incriminate McCracken Junior. The distric t court’s decision to admit into evidence the statements made by McCracken Senior is affirmed.

III. CONCLUSION

For the foregoing reasons, we affirm defendants’ convictions an d sentences.

A true copy.

Attest:

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