## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1181

_____________ United States of America, * * * Plaintiff - Appellee, * *
v. * * Fernando Dwane Davis aka Duane * Davis, * * * Defendant - Appellant. *

_____________ Appeals from the United States District Court for the District No. 97-1182 of Minnesota.

_____________ United States of America, * * * Plaintiff - Appellee, * *
v. * * Darnell Hines, * * * Defendant -Appellant. *-2-

_____________

No. 97-1183

_____________ United States of America, * *

Plaintiff - Appellee, * *
v. * * Paris Wilson, * * * Defendant - Appellant. *

_____________ No. 97-1230

_____________ United States of America, * * * Plaintiff - Appellee, * *
v. * * Carlos Lamont Cleveland, * * Defendant -Appellant. *-3-

_____________

No. 97-1231

_____________ United States of America, * * * Plaintiff - Appellee, * *
v. * * DeShaun Raffles Murphy, * * * Defendant - Appellant. *

_____________ No. 97-1232

_____________ United States of America, * * * Plaintiff - Appellee, * *
v. * * Gerald Jarrett, aka Gerald Jarrett, aka * Gerald Desean Jordan aka Gerald Shawn* Jordan, aka Desean Gerald Jordan, * aka Aaron Desean Johnson, aka Turk, * * Defendant -Appellant. *The district court sentenced Davis to 181 months, Hines to 420 months, 1 Wilson to 295 months, Cleveland to 300 months, Murphy to 360 months, and Jarrett to life in prison. The Honorable David S. Doty, United States District Judge for the District of 2 Minnesota.
-4- _____________ Submitted: December 10, 1997

Filed: August 19, 1998

_____________ Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

_____________
JOHN R. GIBSON, Circuit Judge.

Ferna ndo Davis, Darnel Hines, Paris Wilson, Carlos Cleveland, Deshau n Murphy, and Gerald Jarrett were convicted of conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 (1994), aiding and abetting possession with intent t o distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (1994), and aiding and abetting the use or carrying of a firearm during and in relation to a drug traffickin g crime in violation of 18 U.S.C. § 924(c) (1994). Hines, Cleveland, Murphy, and Jarrett
were also c onvicted of use of a minor in a conspiracy to distribute crack cocaine i n vio lation of 21 U.S.C. § 861(a)(1) (1994). All six appeal their convictions and al l except Davis appeal from the sentences imposed by the district court. We affirm. 1 2

On Octobe r 24, 1995, Agent Jeffrey Burchett of the Minnesota Bureau o f Criminal Apprehension received a phone call reporting a missing juvenile, Janell e Gilliam. He contacted the juvenile's mother, Cathy Bjornos, who told him that men had-5-

come to Bjornos' house looking for Gilliam on the night of October 22, 1995, had given Bjornos a phone number where they could be reached if Gilliam returned home, an d had called Bjornos ' house five to six times later that night, at one point telling her that Gilliam had drugs belonging to them worth $16,000. Burchett also determined that the phone number belonged to Maria Scales and w as assigned to an apartment at 909 East Eighteenth Street in Minneapolis, Minnesota.

Gilliam later contacted Burchett by telephone, and told Burchett that she ha d travele d to Detroit, Michigan, with Gerald Jarrett, Deshaun Murphy, and Carlo s Cleveland. While in Michigan, she met Darnel Hines. She returned to Minneapolis by bus on October 22, 1995, carrying with her a package of narcotics. She informe d Burchett that the drugs were being stored at a Red Roof Inn in Plymouth, Minnesota, and were being sold out of the 909 East Eighteenth Street apartment building.

Burchett obtained hotel records that Cleveland and Hines had registered fo r rooms at the Red Roof

Inn during the month of October 1995. A hotel employee told Burchett that the indi viduals who had stayed in the rooms registered to Cleveland and Hines were currently staying in a room registered to Fernando Davis. Burchet t obtained a war

rant to search Davis's hotel room and contacted other law enforcement officers to a ssist in surveillance and in the execution of the warrant. The surveillance officers saw four individuals leave Davis's room and drive away. The officers stopped the car and identified the individuals as Hines, Cleveland, Tonya Washington, an d Kare n Bradley. The officers then searched Davis's hotel room where they found a n
un loaded Smith & Wesson .357 revolver and 84.9 grams of crack cocaine. Officer s then placed Hines, Cleveland, Washington, and Bradley under arrest.
That evening, hotel staff at the Red Roof Inn c alled Officer John Christiansen of the Pl ymouth Police Department and informed him that individuals had returned t o Davis's hotel room. After arriving at the hotel, Christiansen saw three men leave the hotel room and get into a car which the police stopped. Davis was identified as the-6-

drive r and Paris Wilson and Steve Howard as the passengers. The officers arreste d Davis but released Wilson and Howard without questioning. Officers also discovered Gerald Jarrett and Deshaun Murphy still in the hotel room but did not arrest either o f them.

The in vestigation by Burchett and other officers ultimately resulted in th e indictment of eight individuals. Of those in dicted, only the six appellants now before us pr oceeded to a jury trial. The two others, Patsy Kalfayan and Tonya Washington , entered guilty pleas and agreed to testify on be half of the government. Another suspect, Steve Howar d, was never apprehended. After a fourteen day trial, the jury found th e defendants guilty of all counts of their indictments, and substantial sentences wer e imposed.
Further facts will be recited as is necessary i n our analysis of the issues presented by the appellants.

I.

The appe llants contend that Agent Burchett's testimony as to the out-of-cour t statements of other witnesses was in admissible hearsay. The government responds that Bur chett's testimony was not hearsay because it was not offered for the truth of th e matters asserted but instead was offered to explain his investigation of the alleged drug conspiracy. We review the district court's admission of evidence for a clear abuse o f discretion. United States v. King , 36 F.3d 728, 732 (8th Cir. 1994).
Agent Burchett is a s pecial agent with the Bureau of Criminal Apprehension and

was in cha rge of the investigation into the alleged drug conspiracy. At trial, Agen t Burchett testified to information he l earned solely through hotel or car rental documents
or thro ugh the out-of-court oral statements of hotel staff, other police officers, an d informants, including Janelle Gilliam and her mother, Cathy Bjornos. The defendants-7-

in itially objected to each such instance, and the district judge then allowed th e defendants to enter a standing objection on the basis of hearsay. The district cour t overruled the objections, reasoning that testimony as to what Burchett learned was not hearsay. The district court also declined to instruct the jury as to the limited purpose of Burchett's testimony.

Hear say is defined as "a statement, other than one made by the declarant whil e tes tifying at the trial or hearing, offered in evidence to prove the truth of the matte r asserted." Fed. R. Evid. 801(c). An out-of-court statement is therefore not hearsay if it is offered, not for the truth of the matter asserted, but ins tead to explain the reasons for or pr opriety of a police investigation. See United States v. Collins , 996 F.2d 950, 953 (8th Cir. 1993). We have held, however, that evidence may n ot be admitted for the nonhearsay purpose of explaining an investigation where the propriety of the investigation is no t a relevant issue at trial. See United States v. Blake , 107 F.3d 651, 653 (8th Cir. 1997).

The government contends that defense counsel repeatedly attacked the criminal investigation as defective or improperly motivated and thereby placed the propriety of the investigation in issue. Appellants argue that defense counsel did not attack th e investigation itself but merely the credibility of the government's witnesses. Burchet t
was the government's first witness, so if defense counsel raised the investigation as an issue, they must have done so during opening statements.

We conc lude that, while defense counsel's attacks in their opening statement s largely f ocused on the credibility of individual witnesses, the government could hav e reasonably interpreted their comments as attacks on the propriety of the investigation. Defens e counsel stated that the evidence would show that the government did no t conduct "any indepen dent investigation" to verify Gilliam's story and made "automatic assumpti ons" about the defendant's guilt. We therefore hold that the investigation was placed at issue.Hines, Wilson, and Murphy join in Davis's argument claiming that the 3 evidence had a prejudicial impact on their own cases. However, because they lack standing to challenge the evidence on Rule 404(b) grounds, they instead contend that admission of the evidence was grounds for severance. We address these claims separately in section IV of this opinion.
-8- Having conclude d that a relevant, non-hearsay purpose may have existed for the challenged testimony, we must next determine whether Burchett's testimony wa s reasonably directed towards that purpose. This determination is not based on th e word ing of Burchett's testimony, whether he testified in terms of what the informant s stated or i n terms of what he learned from them during his investigation. Instead, w e comp are the substance of the testimony to the non-hearsay purpose it is supposed t o have served. Burchett's account of what he learned from Gi lliam may have gone beyond

w h at was necessary to explain his investigation, but, for the most part, the challenged testimony helped establish that Burchett conducted an independent investigation o f Gilliam's claims and did not automatically assume the defendants' guilt. While we are troub led by the absence of a limiting instruction during Burchett's testimony, we ar e satisfied that the district court did not abuse its discretion in admitting the challenge d testimony.

II.
Davis argues that

the district court erred in admitting evidence of his prior arrest for possession of a firearm. The government responds that the evidence was admissible 3 under Fed. R. Evid. 404(b) because it was relevant to Davis ' knowledge, intent, and lack of mistake concerning the use or carrying of the gun discovered in the Red Roof In n room on November 4, 1995.
Under Rule 404(b), evidence of past crimes , wrongs, or acts is not admissible for the purpose of proving a defendant's criminal disposition, but may be admissible fo r other purposes such as proof of motive, opportunity, intent, preparation, plan,-9-

knowledge, id entity, and absence of mistake or accident. Fed. R. Evid. 404(b). W e review the district court 's decision to admit evidence under Rule 404(b) for an abuse of discretion and reverse only if it is clear that the evidence had no bearing on a material issue. See United States v. Yerks , 918 F.2d 1371, 1373 (8th Cir. 1990).

Off icer Gerald Barzyk of the Detroit Police Department testified that on th e morning of January 10, 1993, he heard what sounded like a barrage of gu nfire. He drove to investigate the shots and saw Davis apparently fleeing the scene. Barzyk searche d Davis and, finding a loaded .38 caliber handgun, arrested him. The case was referred to tra ffic court, Davis received a diversion, and the gun charge was expunged from his record. The district court held that Barzyk's testim ony was not relevant to Davis's intent to aid and abet the use or carrying of a firearm in a d rug crime, but was relevant to show Davis's knowledge and lack of mistake.

Davi s argues that his earlier gun charge was too dissimilar to be relevant to hi s knowledge or lack of mistake in this case. Davis points out that the earlier alleged crime did not inv olve drugs, the same firearm, or any of his alleged co-conspirators in th e instant case. While this court has held that past acts admitted under Rule 404(b) must be similar in kind to the charge crime, see Yerks , 918 F.2d at 1373, the degree o f similarity required neces sarily depends on the purpose for which the past acts evidence is admitted.

In thi s case, the government presented substantial evidence connecting Davis to the gun, including testimony that Davis escorted Howard when Howard carried the gun to the hotel room where the drugs were stored. Davis's position throughout trial , however, was that he was merely present among his co-defendant s and in the hotel room and was not a knowing participant in their crimes. Thus, an important issue at trial was whether Davis knew that he was helping Howard carry the firearm to the drug safehouse. See United States v. Thomas , 58 F.3d 1318, 1321-22 (8th Cir. 1995) (holding that "mere presence" defense raises issue of defendant's mental state, makingIn support of this argument, appellants cite extensively to Bruton v. United 4 States , 391 U.S. 123 (1968), in which the Supreme Court held that the admission at trial of a defendant's confession that expressly implicates codefendants is a violation of the codefendants' rights under the Confrontation Clause. Bruton , however, does not apply where, as here, the declarant defendant testifies at trial. See United States v. Coco , 926 F.2d 759, 761 (8th Cir. 1991).
-10- Rule 404(b) evidence admissible). Davis's earlier experience with the concealment of a firearm, even if factually distinct from the events in this case, was nonetheless relevant to showing that knowledge. The district court did not abuse its discretion in allowin g evidence of the earlier arrest.

III.

All of t he appellants, except Jarrett, argue that the district court abused it s discretion in admitting taped telephone conversations between Jarrett and his girlfriend, Patsy Kalfayan. While in custody at the Anoka Count y Jail, Jarrett made four telephone calls to K alfayan in an effort to convince her not to cooperate with law enforcemen t officials. During these calls, Jarrett threatened Kalfayan and suggested that othe r individuals would also seek revenge against her if she testified. The district court had the original tapes redacted to limit possible references to the other d efendants. The court admitted the redacted tapes into evidence, and transcripts were provided t o the jury. The appellants contend that, despite redaction, the tapes and transcripts were prejudicial and therefore inadmissible under Rule 403 of the Federal Rules of Evidence. 4

Rule 40 3 allows the district court to exclude relevant evidence if its probativ e val ue is substantially outweighed by the danger of unfair prejudice. See United States v. Guerrero-Cortez , 110 F.3 d 647, 652 (8th Cir. 1997). We give deference to a district court's de cision under the Rule 403 balancing test and reverse only if there was a clear abuse of discretion. See id.-11-

The dis trict court held that the tapes and transcripts had probative value in tha t they were e vidence of Jarrett's consciousness of guilt. Courts may admit evidence o f threats against government witnesses on the grounds that an effort to inti midate a witness tend s to show consciousness of guilt. See id. Appellants argue, however, that th e evidence was unnecessary to convict Jarrett in this case because several witnesses had already te stified to Jarrett's possession of drugs and a firearm. We are hesitant t o
conc lude that the testimony of other witnesses made this evidence unnecessary whe n appellants have repeatedly attacked the credibility of those other witnesses.

The prejud icial impact of the tapes stems primarily from Jarrett's references t o unnamed individuals. Though the court deleted some of these references from th e original tapes, the redacted conversations still contained s tatements by Jarrett that "they" know that K alfayan is testifying and suggesting "they" will do something to her

. Appellants contend that the jury may have considered Jarrett's statements an d threatening behavior as evidence of his co-defendants' guilt. T he court, however, instructed the jury before the tapes were played that they were only to be used against Jarrett and no t against th e other defendants. This court has been reluctant to hold that evidence wa s unfa irly prejudicial when the district court gave an appropriate cautionary instruction

. See United States v. McCarthy , 97 F.3d 1562, 1573 (8th Cir. 1996) ( citing United States v. Baker , 82 F.3d 273, 276 (8th Cir. 1996) and United States v. Bu tler , 56 F.3d 941, 944 (8th Cir. 1995)).
Jarrett did not name or otherwise specifically id entify any of the defendants in the redacted conversations. The trial involved multiple d efendants, and Jarrett testified that he had dealt drugs along with three individuals who were not defendants at trial. Thus, while the conversations may hav e suggested that there were other guilty parties besides Jarrett, the conversations did not indicate that any particular co-defendant was guilty

. In light of these factors, we cannot say the district court abused its discre tion in admitting the taped conversations.-12- IV.

The appellants contend that the district court abused its discretion in failing t o grant a severance of the defendants' trials. Appellants allege several grounds fo r
se verance, including the introduction of Jarrett's phone conversations with Kalfayan , evidence that Jarrett assaulted Washington and Kalfayan, and evidence of Davis' s previous firearms arrest and Jarrett's previous criminal acts. We reverse a district court's denial of severance only upon a showing of clear prejudice and abuse of discretion

. United Stat es v. Drew , 894 F.2d 965, 967 (8th Cir. 1990). Rarely, if ever, will it b e improper for co-conspirators to be tried together. See id. at 968.
Ap pellants' argument for severance based on Jarrett phone conversation s essenti ally mirrors their Rule 403 argument, and we reject it for reasons already stated in section III of this opinion. The assault against Washi ngton was committed during and arguably in furtherance of the conspiracy a nd was therefore admissible against all of the defe ndants and so was not grounds for severance. Kalfayan's testimony that Jarret t frequen tly abused Kalfayan did not suggest that any of the other defendants wer e involved in the abuse, and the district court instructed the jury that Kalfayan's testimony applied only to Jarrett. Likewise, the evidenc e of Jarrett's and Davis's earlier arrests did not suggest the involvement of the other defendants and was accompanied by limiting instruct ions from the district judge. The remaining grounds cited by appellants ar e simp ly not substantial enough to require severance. Accordingly, we hold that th e distr ict court did not abuse its discretion in failing to grant appellants' motions fo r
severance.

V.

The appellants also contend that the prosecution's use of a peremptory strik e against the only Native American on the venire was int entionally discriminatory and that the district court clearly erred in finding otherwise. We are unpersuaded.-13-

In Batson v. Kentuck

y , 476 U.S. 79 (1986), the Supreme Court outlined a threestep proc ess for evaluating claims that a prosecutor used peremptory challenges i n violati on of the Equal Protection Clause. First, the defendant must make a prima facie showing that the prosecution made its peremptory challenge on the basis of race. Id. at 96-9 7. Once a prima facie showing is made, the burden shifts to the prosecution t o provide a racially neutral explanation for its challenges. I d. at 97. Finally, the trial court must determine whether the d efendant has established purposeful discrimination. Id. at 98.

Because the government offered a race neutral explanation for its peremptor y challenge, we need not address whether the defendants made a prima facie case. Se e Hernandez v. Ne w York , 500 U.S. 352, 359 (1991). We thus turn to the issue o f whether the government's race-neutral explanation was sincere or merely pretextual

. This is a factual inquiry and we therefore give great deference to the district court' s determination. See id. at 364.

The government's attorney stated that it struck the Native American panelis t because she was a gu idance counselor and a qualified chemical dependency counselor. The appellants responded that the government's concerns were plainly pretext ual because the government did not challenge a white juror who was involved with a teen clinic and did not challenge three white jurors who were involved in the D.A.R.E. program an d wh o had relatives in law enforcement. As the government pointed out to the distric t court, however, volunteer work with a drug prevention program or a teen clinic i s sign ificantly different from employment as a chemical dependency counselor in term s of experience, expertise, and perspective. A chemical dependency counselor, fo r example, would presumably have a history working with current drug users, which the gover nment

could reasonably believe would affect her assessment of some witnesse s who are themselves drug users.
The defendants' other evidence of pretext was the government's failure toIn their original briefs, appellants also argued that the district court erred in 5 not giving a specific unanimity instruction regarding which firearm was used or carried for the purposes of Count IV. However, at oral argument, appellants conceded that the district judge instructed the jury that they were only to consider the firearm found in the Red Roof Inn hotel room.
-14- propose a ny voir dire questions on the issue of chemical dependency expertise. While

a trial cou rt could consider such evidence, the government's failure to solicit certai n information through voir dire questioning does not necess arily mean that the government would not be concerned about the information once it becomes known. Accordingly, we
co nclude that the district court did not clearly err in accepting the government's race

neutral explanation.

VI.

The appellants argue that the district court erred in not giving more specifi c instructions with regard to Count IV, aiding and ab etting the use or carrying of a firearm during and in relation to a dr ug trafficking crime. First, appellants contend that the jury
was not told it would have to unanimously agree either that the defendant aided an d abetted the use or carrying of a firearm or that the defendant could reasonably foresee that a c o-conspirator would commit the offense of aiding and abetting. We review a 5 district court's decision not to give a specific unanimity instruction under the clearl y erroneous standard. See United States v. Jelinek , 57 F.3d 655, 658 (8th Cir. 1995).

The district court instructed the jurors that their verdict in the overall case must be unan imous and that their verdict must be unanimous as to Count IV. Appellants , however, argue that these gene ral unanimity instructions were inadequate in light of the court's jury instruction s regarding liability under Count IV. In its instructions on Count IV, the court explained in detail the essential elements of the crime of using or carrying a firearm during a drug trafficking crime and instructed the jury that the instructions-15-

given on aiding and abetting under Count III also applied to Count IV.

The court then ins tructed the jury on vicarious liability for co-conspirators as set forth in Pinkerton v. United States , 328 U.S. 640 (1946). The district court explained:

If y ou unanimously find that a defendant is guilty of conspiracy, as charged in C ount One of the indictment, you may also find that defendant guil ty of an offense or offenses as charged in any one or more of Count s Two, Three, and Four of the indictment in which he is charged, provided that you find that each of the essential elements of any one or more o f Counts Two, Three or Four, as defined in these instructions, has bee n estab lished beyond a reasonable doubt, and provided that you also fin d beyond a reasonable doubt that: First. The offense or offenses defined in the non-conspiracycounts -- tha t is, Counts Two, Three, and Four -- was or were committed by a member of the conspiracy during and in furtherance of the conspiracy; Secon d. That the particular defendant was a member of th e conspiracy at the time that the o ffense or offenses charged in Counts Two, Three, and Four was or were committed; and Third. That the offense or offenses defined in the non-conspirac y counts -- that is Counts Two, Three, and Four -- were in furtherance of and a natural or reasonably foreseeable consequence o f the unlawful agreement -- that is the conspiracy.
Jury members were thus provided with two theories by which they could find a de fendant guilty of Count IV -- aiding and abetting or Pinkerton liability. Appellant s maintain that without a specific unanimity instruction, some jurors may have found a def endant guilty only of directly aiding and abetting while other jurors found th e defendant guilty only through vicarious liability. In other words, appellants argue that the jury may have convicted defendants of Count IV without unanimously agreeing to either theory.

Thi s court has repeatedly held that a general unanimity instruction is usuall y sufficient to protect a defendant's sixth amendment right to a unanimous verdict. See-16-

United Sta

tes v. Gruenburg , 989 F.2d 971, 975 (8th Cir. 1993) (citing United States v. Montanye , 962 F.2d 1332, 1341 (8th Cir. 1992)). A district court may have to give a specific unanimity instruction where there is a genuine risk of jury confusion. Id

. However, "[t ]he mere fact . . . that an instruction could conceivably permit a jury t o reach a non-unanimous verdict is not sufficient to require reversal when the jury has been instructe d that it must reach a unanimous verdict." United States v. Hiland , 909 F.2 d 1114, 1 140 (8th Cir. 1990) (quoting Berrisford v. Wood , 826 F.2d 747, 754 (8th Cir

. 1987)).
The district court sufficiently disti nguished Pinkerton liability and the substantive offense of aiding and abetti ng as separate theories of guilt. See United States v. Lucas , 932 F.2d 1210, 1220-21 (8th Cir. 1991) (holding no plain error occurred where jur y instructions clearly distinguished vicarious liability and aider and abettor liability as two diffe rent theories of guilt). Although the court instructed the jury on Pinkerto n immediatel y after instructing on Count IV, the court explained that Pinkerton liability could be found with respect to Counts II, III, or IV. The court also explained that to find
a defen dant vicariously liable for Count IV, the jury must find that a member of th e conspiracy committed the offense charged in Count IV, namely aiding and abetting i n the use or carrying of a firearm in a drug trafficking crime.
Further, it is doubtful, under the facts of this case, that a jury member found a defendant guilty of aiding and abetting in the use or carrying of a firearm but would not have found that defendant culpable under Pinkerton . If any juror who found th e defendan ts guilty of directly aiding and abetting would also find the defendant s vicariously liable, then no unanimity problem exists because all of the jurors would have at least agreed on the Pinkerton theory of guilt.

As outlined

in the jury instructions, Pinkerton liability requires that a member of the conspiracy committed the offense in furtherance of the co nspiracy at a time when the defendant was also a member of the conspiracy and that the offense was a-17-

reasonably foreseeable consequen ce of the unlawful agreement. Pinkerton , 328 U.S. at 646- 48; see also United States v. Lucas , 932 F.2d at 1220. Obviously, an aider an d abettor could foresee his own act of aiding and abetting as a natural consequence of the conspiracy . Therefore, the risk of a non-unanimous verdict rests on the likelihood that
a jury memb er found a defendant guilty of directly aiding and abetting in the use o r carrying of a firearm in a drug trafficking crime but believed th at the defendant either did not do so in furtherance of t he conspiracy or was not a member of the conspiracy at the time.
The jury found that the appellants were all mem bers of the same drug conspiracy, that they w ere all complicit in the use or carrying of the same firearm, and that th e firearm was used or carried in furtherance o f a drug crime for which they were all found gui lty. None of the parties presented any theory or evidence of the firearm being used
or carried in a drug crime unrelated to the conspiracy. We therefore conclude that the district court’s decision not to provide a specific unanimity instruction was not clearly
erroneous.
Next, appe llants contend that the district court should have instructed the jur y more clearly that, to be vicariously liable for a firearm, the defendant must have foreseen that the firearm would

be "used" or "carried" as defined in Bailey v. United States , 116 S. Ct. 501 (1995). We reject this argument.

In expla ining the substantive offense charged in Count IV, the district cour t instructed the jury that to be "used", a firearm must be "actively employed." The district court then listed the examples of using a firearm which were provided in Bailey , 11 6 S.Ct. at 503. The district court later instructed the jury that, for a defendant to b e vicariously liable for a non-conspiracy count, t he offense "defined in the non-conspiracy count[]" must have been "in furtherance of and a natural or reasonably foreseeabl e consequen ce of the unlawful agreement." This instruction adequately referred the jury to the district court's earlier explanation of Count IV, including its-18-

definition of "use" of a firearm. Accord ingly, we conclude that the district court did not err in its instructions.

VII.

The appellants contend that the government engaged in several instances o f prosecutorial misconduct.

"Th e test for reversible prosecutorial misconduct has two parts: (1) th e prosecutor's remarks or co nduct must in fact have been improper, and (2) such remarks

or condu ct must have prejudicially affected the defendant's substantial rights so as t o deprive th e defendant of a fair trial." United States v. Hernandez , 779 F.2d 456, 45 8 (8th Cir. 1985). In determining the prejudicial effect of prosecutorial misconduct, the courts generally consider the cumulative effect of such misconduct, the strength of the properly admitted evidence of the defendant's guilt, and the curative actions taken by the trial court. See id. at 460.
Appellants contend th at it was misconduct for the United States Attorney for the Distr ict of Minnesota to issue, one week before trial, a press release which announced the arrests of a group known as the "Detroit Boys," and which led to a front page article in The Star Tribune , a Twin Cities area newspaper. According to the article, the Detroit Boys were a g roup of young men, originally from Detroit, who set up drug dealin g operations in the Twin Cities and ran a distribution system very similar to the operation that the appellants were ac cused of running. The appellants, however, were not among the individuals identified as members of the Detroit Boys drug operation, nor were the appel lants directly referred to in the article. The individual prosecutors in this cas e maint ain that they were unaware of the United States Attorney's intention to issue th e press release.
The issuance of a press release describing a similar operation before trial is-19-

fraught with the risk of reversal. The district court in this case, however, took substantial steps to alleviate the possible impact of the press release on the jury. First, th e defen dants were allowed to draft a jury questionnaire focusing on possible bia s stemm ing from the pretrial publicity. Individual jury panelists who answered in thei r quest ionnaires that they were familiar with the "Detroit Boys" were questione d in dividually outside the presence of the other prospective jurors so that their answer s would not pr ejudice the jury as a whole. The court asked the individual panelist s whether they cou ld effectively distinguish the Detroit Boys article from the defendants' case. In addition, the court instructed the entire jur y panel that the publicity surrounding the Detroit Boys did not relate to the defendants. Final ly, the district court ruled that the government could not introduce evidence that the defendants referred to themselves as Detroit Boys or were affiliated with a gang. In light of the steps taken by the distric t
cou rt, we conclude that the press release was not so prejudicial as to deprive th e defendant's of a fair trial.
Appe llants also cite several instances in which the government allegedl y commi tted misconduct by introducing or eliciting evidence that appellants claim wa s prejudicial or otherwise inadmissible. On e of these instances involved Agent Burchett's alleged hearsay testimony, an issue which we have previously addressed. Appellan ts argue that it was misconduct for the government to elicit testimon y from Gilliam that Murphy had asked her to perform sex acts with Cleveland and Hines and that sh e refused. At a pretrial motions hearing, the district court rejected th e government's argument to bring this testimony in as eviden ce of intimidation and warned th e government that eliciting the testimony might result in a mistrial. During the trial , however, the government argued to the court that the defendants had opened the door to questioning on sexual activity through their opening state ments and cross-examination of Agent Burchett, by referring to Gillli am as a prostitute and as someone who was "no strange r to sex." The district court held that the door had been opened and that th e testimony was admissible to explain Gilliam's behavior during the time she was with the defendants. Under these circumstances, we cannot conclude that eliciting-20-

the challenged testimony was improper.
Appellants contend that the government improperly eli cited testimony from Maria Scales that members of the conspiracy would give women drugs in exchange for sex

. The challenged testimony was brief, was not s ensationalized, and was arguably relevant to how the conspirators distributed drugs and why their incomes may not have accurately reflected their drug sales. Further, the appellants' claim that the testimony prejudicially affe cted their substantial rights is weakened by the fact that, while defense counse l objected that the testimony lacked foundation, they did not object to the testimony a s irreleva nt or unfairly prejudicial at trial. We therefore conclude that eliciting Scales' s testimony was not prosecutorial misconduct.
Appellants claim that the government improperly elicited testimony of threats and int imidation and elicited prejudicial expert testimony on the standard practices of drug deal ers. Some of the challenged testimony was first elicited by defense counsel an d
some was at least plausibly relevant. In those instances where witness testimony o r government inquiry was inappropriate, the district court adequately responded b y
sus taining defense counsel's objections and having challenged testimony stricken from the record. Accordingly, we reject these claims of misconduct.
Appellants argue that the government improperly interfered with appellants ' access to five government witnesses. By appellants' own admissions, four of these witnesses told d efense counsel in person that they did not wish to be interviewed. Appellant s contend, however, that the witnesses had been "obviously coached" and "had bee n instructed n ot to answer questions." This is pure speculation; the record contains n o evidence wha tsoever as to what communications, if any, occurred. Even if th e government informed the witnesses that they did not have to answer defense counsel's q u estions, the government does not interfere when it merely advises witnesses of their right to decid e whether or not to submit to pre-trial interviews. See United States v

. Cheatham , 899 F.2d 747, 753 (8th Cir. 1990). Whether the government-21-

crossed t he line from mere consultation to active interference is a matter whic h appellants cannot establish from evidence in the record.
One witness, Officer Kevi n Pregler, admitted to having told Cleveland's attorney tha t one of the prosecutors told Pregler not to talk with defense counsel, but explained that he h ad misspoken and that he was never instructed not to speak with defens e
coun sel. Pregler testified that Agent Burchett indicated that Pregler was under n o obligatio n to do so. The district court made no factual findings on the issue, but asked Pregler to talk with defense counsel, and Pregler agreed. Because Pregler ultimatel y agreed t o speak with defense counsel before taking the witness stand, anything th e government may have said to him regarding pre-trial interv iews did not affect appellants' right to a fair trial.
Further, appellants argue that Pregler's test imony evidences more widespread and unremedied government interference. As an appellate court, we have n o power to assess Pregler' s credibility. Even if the government crossed the line in its discussions with Pregler, we could not assume that the government crossed the line in its communications with other witnesses. Accordingly, we reject the appellants' claim of imprope r government interference.

In their briefs, appellants list nine other claims of misconduct relating primaril y to government remarks made during trial. Having reviewed each of the alleged instances of mi sconduct, we conclude that these remaining claims do not provide sufficien t grounds for reversal . Many of the challenged remarks, when placed into context, were simply not improper. When the government did act im properly by asking argumentative questions or referring to defendants as an "organization," the district court abl y responded by sustaining obje ctions, admonishing the government in the presence of the jury , and even issuing cautionary instructions to the jury. On one occasion, th e govern ment questioned a witness in such a manner that may have left the jury with the incorrect impression that the witness had positively identified defendantAs previously stated, Hines and Cleveland were charged and convicted of 6 Counts I, II, III, IV. Davis was charged and convicted of Counts I, III, and IV only.

-22- Hines fr om a photo spread. The prejudicial effect of any misconduct was eliminate d when the witness ad mitted on cross-examination that she had been unable to positively identify Hines and instead had only r ecognized him as someone who "looked familiar."
On a few occasions, the government made improper statements or a sked improper questions that were not effectively remedied by district court admonitions or throug h

cross-ex amination. Nonetheless, we are satisfied that the government's imprope r comments and questions, even when viewed in combina tion with the government's other inappropriate actions, were not so prejudici al as to deny the appellants the right to a fair trial. Accordingly, we reject the appellant's claims of prosecutorial misconduct.

VIII.
Cleveland, Hines, and Davis argue that the evidence was insufficient to convict them on any of the counts for which they were indicted. Murphy challenges th e 6 sufficiency of the evidence only with respect to Count IV, the firearms count.
"In reviewing the suff

iciency of the evidence to support a guilty verdict, we look atthe evidence in the light most favorable to the verdict and accept as established al l reasonable inferences supporting the verdict. We then uphold the conviction only if it is supported by substantial evide nce." United States v. Plenty Arrows , 946 F.2d 62, 64 (8th Cir. 1991); see also Glasser v. United States , 315 U.S. 60, 80 (1942).

The suf ficiency challenges relating to Counts I, II, and III are, for the most part, challenges to the cred ibility of the government witnesses. As we have often stated, the-23-

jury is the ultimate arbiter of witness credibility. See United States v. Slaughter , 12 8 F.3d 623, 628 (8th Cir. 1997). The defendants in this case took great careboth on crossexamination and during closing arguments to bring the weaknesses of the government witnesses and their testimony to the attention of the jury. This does not demonstrat e insufficiency of the evidence.
With regard to Count I, conspiracy to distribute, and Count III, aiding a nd abetting possessi on with intent to distribute, witnesses testified that both Hines and Clevelan d personally sold crack fr om an apartment in the Redeemer Arms apartment building and delivered the proceeds to Jarrett. Although no witness saw Davis personally handling or selling drugs, Dav is was present when crack cocaine was being processed and took part in assaulting Washington in an attempt to f ind a missing package of drugs. Further, law enforcement off

icers discovered over eighty-four grams of crack cocaine in a hotel room registered under Davis's name.
With regard to C ount II, use of a minor in a conspiracy to possess and distribute crack cocaine, Hines personally made sure Gilliam purchased a bus ticket to transport drugs from Detroit to Minneapolis and met Gilliam in Ch icago in order to verify that she changed buses. For his part, Cleveland talked with Jarrett about having Gil liam transport th e drugs to Minneapolis and was among the men who met Gilliam at the bus statio n when she arrived in Minneapolis with the drugs. Whether or not Cleveland's action s
were sufficient to constitute use of a minor, they undoubtedly establish that Cleveland could reasonably foresee Gilliam's involvement in transporting the drugs. Thus, the jury could ha ve found Cleveland vicariously, if not directly, liable for the recruitment o f Gilliam into the conspiracy. See Pinkerton , 328 U.S. at 646-48. Accordingly, w e conclude that the evidence was sufficient to convict Hines, Cleveland, and Davis o f Counts I and III and to convict Hines and Cleveland of Count II.
We next examine whether the evidence was sufficient to convict the appellants-24-

of Count IV, aiding and ab etting the use or carrying of a firearm during or in relation to
a drug t rafficking crime. The first question is whether the government presente d sufficient evidence that the firearm identified in the indictment, a silver-colored .35 7 Magnum found in the Red Roof Inn hotel room , was actually used or carried during and in relation to a drug crime within the meaning of 18 U.S.C. 924(c)(1) (1994).

In Bailey v. United States , 116 S.Ct. 501, the Supreme Court defined "use" t o require th e "active employment" of a firearm. Id. at 505. "The active-employmen t understanding of 'use' certainly includes brandishing , displaying, bartering, striking with, and most obviously, firing or attempting t o fire, a firearm." Id. at 508. The government presented no theory as to how any conspirator "actively employed" the firearm while at the Red Roof Inn. Indeed, the evidence on the issue suggests that the firearm remained hidden under a mattress from the time Steve Howard brought it into the hotel room until police conducted their search. However, there was evidence that the firearm found in the hotel room is the same firearm that was repeatedly used earlier in the conspiracy.
Washington tes tified that Howard, Wilson, and Murphy kept a "little silver gun" in the upstairs apartment at 909 East Eighteenth Street during drug sales. According to Washington, whenever a buyer came to the door, one of the three men would answer the door, holding the firearm in pla in sight. They would then hide the gun under the couch. Similarly, Paige testified that Howard and Wilson kept a ".357 magnum" "[ i]n the couch" in the upstairs apartment. From these descriptions, the jury could have reasonabl y inferred t hat the gun displayed during drug sales at the 909 East Eighteenth Stree t apartment was the same firearm found in the Red Roof Inn hotel room. Thus, th e evidence was sufficient to show use of the firearm at issue.

In addit ion to presenting evidence of "use," the government also presente d evidence that the gun at issue was "carried" "during and in relation to" a drug crim e within the meaning of section 924(c)(1). Washington testified that on November 1,-25-

1995, she and other members of the conspiracy transported drugs by car from Detroi t to the Twin Cities. Howard traveled separately by bus and took with him two guns , including t he .357 revolver. Upon arriving in the Twin Cities, he met Davis an d Cleveland who took him to the Red Roof Inn hotel room where the drugs were hidden. Ho ward then hid the .357 revolver under a mattress in the hotel room and stored th e other gun in the trunk of Washington's rental car.
There is little quest

ion that Howard carried the .357 revolver within the meaning of the statute. See Musc arello v. United States , No. 96-1654, 1998 WL 292058, at *2 (U.S. June 8, 1998) (defining " carry" broadly such that "one can . . . 'carry firearms' in a wagon, car, truck, or other vehicle that one a ccompanies"); United States v. White , 81 F.3d 80, 83 (8th Cir. 1996) ("[G]overnment must prove that [ defendant] bore the firearm
on or abou t his person . . . .") However, it is not enough that a conspirator carried a firearm; the firearm mu st be carried "during and in relation to" a drug trafficking crime. 18 U.S.C. § 924(c)(1).
The Supreme Court explained in Smith v. United States , 508 U.S. 223 (1993 ), that the phrase "in relation to" is expansive but that, at a minimum, "the firearm must have

some purpose or effect with respect to the drug trafficking crime; its presence o r involvement cannot be the result of accident or coincidence." Id. at 237-38. Here, the conspirators had a practice of using guns in connection with their drug distributio n sch eme, and Howard was delivering the guns to the hotel room where the drugs wer e stored. The jury could have reasonably inferred that Howard delivered the gun to th e hot el room in order to protect the drugs and the drug dealers until the time o f distri bution. Thus, the evidence was sufficient to show that carrying the firearm wa s related to the charged drug crimes of conspiracy to distribute and aiding and abettin g possession with intent to distribute. The "during" requirement was likewise met in that the delivery o f the gun not only occurred within the time frame of the charged dru g conspiracy but was itself a step in that conspiracy.-26-

The jury cou ld have convicted the individual defendants based on either a direct aiding and abetting theory or under a Pinkerton theory of vicarious liability for co

con spirators. Murphy, Cleveland, and Davis could each have been convicted o f personally a iding and abetting in the use or carrying of the firearm. Murphy not onl y took turns with Howard and Wilson using th e firearm during drugs sales, he also helped keep th e firearm hidden from view between sales. Cleveland and Davis helped i n carrying t he firearm by meeting Howard at the bus station and taking him to the Re d Roof Inn.

In contrast, there was no evidence that Hines personally aided and abetted i n either the use or carrying of the firearm at issue. Hines, however, was at least present when Jarrett threatened several of the co-conspirators with a different firearm in an effort to reco ver missing drugs. At that point, Hines knew that his co-conspirators possessed
one or more firearms and could have reasonably foreseen that firearms would be used or carried during and in furtherance of the drug conspiracy. Given the scope and nature of the cons piracy, it was likewise foreseeable that his co-conspirators would assist i n using and carrying firearms. As a result, the jury could have found Hines guilty of aiding and abe tting under a vicarious liability theory. Accordingly, we conclude that th e evidence was sufficient to convict Murphy, Cleveland, Davis, and Hines of Count IV.

IX.
Appellants, with the exception of Davis, make numerous arguments concerning th eir sentences. Jarrett, Cleveland, and Murphy challenge as unconstitutional th e disp arity in base offense levels assigned for offenses involving crack cocaine a s compared to offenses involving an equal quantity of powder c ocaine. This argument has been rejected in numerous cases.
Hines, Cleveland and Murphy dispute the district court's factual finding that the-27-

conspiracy involved between 500 grams and 1500 grams of crack coca ine. Hines argues that the district court er

red in assigning him a two-level upward adjustment for his role as a manager or supervisor under United States Sentencing Guidelines § 3B1.1(c) (1997) and in f ailing to grant a two level downward adjustment for being a minor participan t unde r U.S.S.G. § 3B1.2(b). Wilson likewise argues that the district court erred i n declining to grant him a downw ard adjustment for being a minor participant. These are all factual issues, and we are not persua ded that the district court's findings were clearly
erroneous.
Murphy argues that the district cour t double counted in assigning him a two level upward ad

justment for being Gilliam's manager or supervisor when he was alread y convi cted of using a minor to assist in a conspiracy to distribute crack. Murphy als o contends that the court should have gra nted him a downward adjustment for acceptance of re sponsibility under U.S.S.G § 3E1.1, as well as a downward departure unde r U.S.S.G. § 5K2.0. Finally, Cleveland argues that the district cou rt incorrectly concluded tha t it lacked the authority to consider his motions for downward departures unde r U.S.S.G. §§ 5K2.0, 5K2.12. We have carefull y reviewed the appellants' arguments and the relevant portions of the record and conclude that the arguments are without merit.

A true copy.

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