UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-30655

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORBERT A. GRIFFITH,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

______________________________________________

July 17, 1997

Before WISDOM, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Norbert A. Griffith appeals his conviction for conspiring to

possess marijuana with the intent to distribute. He claims that a

federal agent who was not shown to be an expert in the jargon used

by drug dealers gave improper opinion testimony interpreting his

wiretapped conversations with another suspect. He also contends

that the district court failed to adequately instruct the jury on

the Fifth Amendment privilege against self-incrimination after the

prosecutor improperly commented on his failure to testify.

Griffith also appeals his sentence. We affirm.
 

1The defense presented evidence that Griffith did not reside

in the home at the time and argued that no incriminating evidence

found there could be connected with him. The jury necessarily

rejected this theory.

2

I.

This case arose out of a Drug Enforcement Administration (DEA)

investigation into the marijuana trafficking activities of Kenneth

J. McMillan. From February 14 to March 1, 1995, the DEA lawfully

wiretapped two of McMillan’s telephone lines. The DEA intercepted

and recorded five conversations between McMillan and Griffith;

three of these conversations were played at trial. Special Agent

Susan Nave identified the speakers and interpreted their cryptic

dialogue for the jury, explaining that the conversations concerned

available quantities, prices, and qualities of marijuana. This

testimony was corroborated by Henry Richardson, a DEA intelligence

analyst, who testified as an expert witness for the prosecution.

On March 1, 1995, the DEA and local police executed a search

warrant at the Griffith family’s home at 2852 Pritchard Road,

Marrero, Louisiana.1 In a bedroom closet, along with men’s

clothing and a rifle, they found a green duffel bag containing 40

clear plastic bags of marijuana weighing approximately 45 pounds.

Griffith’s wife, Roseanna, and his son, Scott, arrived home

separately soon after the search. An agent asked Scott to page his

father electronically; he did so, and the appellant soon arrived at

the house in his red Ford pickup truck. He was arrested, and a

search of the truck turned up a daily planner containing two
 

2Although the accuracy of this claim has been questioned in

recent years, “it is still undoubtedly true that . . . cultures

with different needs are likely to have correspondingly different

vocabularies.” Janet E. Ainsworth, Categories and Culture, 82

CORNELL L. REV. 19, 42 n.52 (1996).

 

3ESTHER LEWIN & ALBERT E. LEWIN, THE THESAURUS OF SLANG 243 (1994).

See also JONATHON GREEN, THE SLANG THESAURUS xiii (1986) (“‘The chief

stimuli of slang are sex, money and intoxicating liquor,’ opined

Dr. J.Y.P. Greig in 1938. Bowing to current events one must add

drugs to that list.”).

3

marijuana cigarettes, a partially smoked marijuana cigarette on the

driver’s side floorboard, and a small address book containing the

names and phone numbers of McMillan and another co-defendant.

Griffith was indicted on a single count of conspiracy to

possess marijuana with intent to distribute in violation of 21

U.S.C. § 841(a)(1). 21 U.S.C. § 846. He was convicted on December

12, 1995, after a two-day jury trial, and was sentenced on June 19,

1996, to a prison term of 30 months.

II.

A.

Language evolves to reflect the preoccupations of a culture.

As the scourge of drug abuse took root in the United States, a

vivid slang vocabulary developed to describe various illegal drugs,

their consumption, and their effects. Just as the Eskimos

reputedly have 22 different words for snow,2 we now have, by one

count, 223 terms for marijuana.3 The most common of these terms,

such as “grass” and “pot,” are no doubt familiar to millions of

Americans, and may be understood by juries without the aid of

expert witnesses. 

On the other hand, there is a specialized jargon endemic to
4

the illegal drug distribution industry. A primary purpose of this

jargon is to conceal from outsiders, through deliberate obscurity,

the illegal nature of the activities being discussed. Drug

traffickers will often refer to ordinary items of commerce in lieu

of illegal narcotics. The Seventh Circuit informs us that drug

dealers have referred to their merchandise as “three pairs of

boots” and as “pianos” sold by the kilogram. See United States v.

Romero, 57 F.3d 565, 570 (7th Cir. 1995) (citations omitted).

Traffickers also have referred to a supply of heroin as “the boy”

or “the boyfriend,” and as “briefs” and “motions.” See United

States v. Simmons, 923 F.2d 934, 946 (2d Cir.), cert. denied, 500

U.S. 919, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991).

It is implausible to think that jurors can understand such

arcane allusions without expert assistance. Drug traffickers’

jargon is a specialized body of knowledge, familiar only to those

wise in the ways of the drug trade, and therefore a fit subject for

expert testimony. As one court observed, “There is no more reason

to expect unassisted jurors to understand drug dealers’ cryptic

slang than antitrust theory or asbestosis.” United States v.

Delpit, 94 F.3d 1134 (8th Cir. 1996) (citation omitted). In short,

“Jurors as well as judges often need help in deciphering the jargon

of those engaged in the drug trade.” United States v. Walls, 70

F.3d 1323, 1326 (D.C. Cir. 1995), cert. denied, ---U.S.---, 116

S.Ct. 1445, 134 L.Ed.2d 565 (1996).

Our own court has held more generally that “an experienced

narcotics agent may testify about the significance of certain
5

conduct or methods of operation to the drug distribution business,

as such testimony is often helpful in assisting the trier of fact

understand the evidence.” United States v. Washington, 44 F.3d

1271, 1283 (5th Cir.), cert. denied, ---U.S.---, 115 S.Ct. 2011,

131 L.Ed.2d 1010 (1995). We have allowed law officers to testify

to the “argot or seemingly secret jargon” used in drug money

laundering. United States v. Fuller, 974 F.2d 1474, 1482-83 (5th

Cir. 1992), cert. denied, 510 U.S. 835, 114 S.Ct. 112, 126 L.Ed.2d

78 (1993). We see no reason the same principle should not apply to

drug traffickers as well as their bankers.

B.

The prosecution, as part of its case in chief, replayed two

wiretapped conversations between Griffith and McMillan. In the

first conversation, Griffith said that he went somewhere to get “50

days of work” but that “there was only 39.” Agent Nave testified

that “days of work” was a euphemism for “pounds of marijuana.”

Later in the conversation, the following exchange took place:

McMillan: How was that man what you got from her?

Griffith: It’s . . . pretty decent. It’s not super super, but

it’s, it’s, ain’t had no complaints. The smell is

super. . . . [T]hey like that pine smell.

McMillan: Well, hey man, why don’t you, um, pull me a big

quarter aside, I’ll come get it tomorrow. You got

some left?

Griffith: Yeah. Oh ain’t no problem. . . . I got about two

weeks worth of work left.

McMillan: Okay, I’m sitting over here smoking my very last

one.

Nave stated that this dialogue concerned the quality of a
6

shipment of marijuana, the buyers’ satisfaction with it, and a

request by McMillan that Griffith restock his supply.

In the second conversation, McMillan said he needed “to pull

together another 30.” Griffith replied that he did not have that

much, but had some and expected more in the next week. McMillan

also said that “these are going to go for 8” but that he would give

Griffith “a certain amount at that 5 price like I told you.” He

asked for Griffith’s help “with the other on the 8 mark.”

Nave testified that “30" meant a $30,000 shipment of

marijuana, and that the “5 price” and “8 price” meant $500 and $800

a pound. She stated that McMillan was discussing selling a

quantity of marijuana to Griffith for $500 a pound. 

C.

Griffith’s and McMillan’s references to marijuana prices and

quantities would have been incomprehensible to the jury without

assistance from a witness schooled in the ways of the drug trade.

Even if the references to the “pine smell” and “smoking” hinted at

the topic being discussed, Agent Nave’s opinion testimony

undoubtedly was helpful to the jury in deciphering the details of

the proposed transactions. Griffith claims, however, that the

district court abused its discretion by allowing Nave to interpret

his wiretapped conversations. He contends that the government

failed to carry its burden of proving, by a preponderance of the

evidence, that Nave was an expert in the “jargon,” “argot,” or

“code words” of the wholesale drug trade. See Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, ---, 113 S.Ct. 2786, 2796
 

4The district court itself was uncertain whether Nave had

testified as an expert. At the conclusion of the two-day trial,

the court told the jury: “We had some expert witnesses--one, at

least, who testified, perhaps more.” Richardson was unmistakably

an expert witness; “perhaps” Nave testified as an expert as well.

7

n.10, L.Ed.2d (1993) (under FED. R. EVID. 104(a), the proponent of

expert testimony must establish the witness’s qualifications by a

preponderance of proof (internal citation omitted)).

Griffith’s argument raises the threshold question of whether

Nave was in fact permitted to testify as an expert. As a formal

matter, Nave was neither proffered as an expert by the prosecution

nor qualified as one by the district court. Nonetheless, the

district court questioned her about her experience as a drug

investigator and repeatedly offered defense counsel the opportunity

to traverse or cross-examine her as to her “expertise.”4 Moreover,

Nave herself testified that her opinions were based on her

“knowledge and experience.” Cf. FED. R. EVID. 702. 

On balance, we think it is clear that the district court and

the parties treated Nave in substance as an expert. The question

is whether this was an abuse of discretion, Snap-Drape, Inc. v.

Commissioner of Internal Revenue, 98 F.3d 194, 197 (5th Cir. 1996),

either because Nave was in fact unqualified to give expert

testimony, or because the court failed to formally qualify her.

We have little doubt that Nave was qualified to give expert

testimony regarding the ways of drug dealers. Her experience at

the time of trial included eight-and-one-half years as a DEA agent,

during which she participated in 50 investigations, working at

times in an undercover capacity. In her career, Nave surely has
8

had ample opportunity to listen to drug dealers converse and to

decipher the nuances of their conversations. Moreover, we are not

convinced that the government, having established Nave’s

qualifications as an expert in drug trafficking generally, was

required to prove her particular knowledge of drug dealers’ jargon.

Defense counsel could have questioned Nave’s credentials at trial,

but chose not to traverse or cross-examine her on this issue.

We hold that there was no abuse of discretion in the district

court’s implicit finding that Nave was qualified as an expert on

drug trafficking. She clearly was qualified by knowledge and

experience to interpret drug dealers’ jargon; the subject “had

esoteric aspects reasonably perceived as beyond the ken of the

jury,” Romero, 57 F.3d at 571 (internal citation omitted), making

it fit for an expert’s analysis; and her testimony shed light on

the crucial issue of Griffith’s willing participation in a

marijuana distribution conspiracy. Nor did the court abuse its

discretion by failing to establish Nave’s credentials until midway

through her testimony. At worst, the district court committed a

technical error by failing to state that Nave was qualified as an

expert and by not requiring the government to establish her

credentials at the start of her testimony. 

Moreover, even assuming that an abuse of discretion occurred,

it would provide no ground for reversal. The “erroneous admission

of expert testimony is subject to harmless error analysis.” United

States v. Krout, 66 F.3d 1420, 1433 (5th Cir. 1995) cert. denied,

---U.S.---, 116 S.Ct. 963, 133 L.Ed.2d 884 (1996); see FED. R. CRIM.
 

5Rule 52(a) states: “Any error, defect, irregularity or

variance which does not affect substantial rights shall be

disregarded.”

9

P. 52(a).5 The alleged error in this case was harmless for two

reasons. First, any error was one of form rather than substance.

Nave was clearly qualified; that her credentials were established

after she began her substantive testimony, rather than at its

outset, did not affect Griffith’s substantial rights. Second,

Nave’s testimony was corroborated by that of Richardson, the DEA

intelligence analyst, an undisputed expert. Even without Nave’s

opinion testimony, the only plausible interpretation of the

conversations put forward at trial was that Griffith and McMillan

were discussing the purchase and sale in bulk of marijuana.

Finding no abuse of discretion and, alternatively, no

prejudice to Griffith’s substantial rights, we hold that the

admission of Nave’s opinion testimony in the absence of her formal

qualification as an expert was not reversible error.

III.

Griffith claims that the prosecutor violated his Fifth

Amendment privilege against self-incrimination by commenting,

during her closing argument, on his failure to take the stand. The

prosecutor, Assistant United States Attorney Mary Jude Darrow,

concedes that her comment was an error of constitutional magnitude.

Nevertheless, she contends that the district court corrected the

error through its curative instructions to the jury.

Alternatively, Darrow, who argued this appeal, maintains that any

deficiency in the district court’s instructions was harmless in
10

light of the “overwhelming evidence of Griffith’s guilt.”

A.

The Fifth Amendment provides that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself . .

. .” U.S. CONST. amend. V. This guarantee would be enfeebled if

prosecutors were free to suggest, and juries to infer, that

defendants who exercised the “right to remain silent” were probably

guilty. Consequently, the Supreme Court has condemned adverse

comment on the defendant’s failure to testify as “a remnant of the

inquisitorial system of justice” and “a penalty imposed by courts

for exercising a constitutional privilege.” Griffin v. California,

380 U.S. 609, 614, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965)

(internal quotation marks, citation, and footnote omitted); see

also Carter v. Kentucky, 450 U.S. 288, 297-98, 101 S.Ct. 1112,

1118, 67 L.Ed.2d 241 (1981). The rule is thus well established

that a prosecutor “may not comment directly or indirectly on a

defendant’s failure to testify.” United States v. Fierro, 38 F.3d

761, 771 (5th Cir. 1994) (citation omitted), cert. denied, ---U.S.-

--, 115 S.Ct. 1388, 131 L.Ed.2d 240 (1995); United States v. Dula,

989 F.2d 772, 776 (5th Cir.) (citations omitted), cert. denied, 510

U.S. 859, 114 S.Ct. 172, 126 L.Ed.2d 131 (1993).

B.

Darrow violated this rule. By Darrow’s own account, Griffith

kept up a running commentary at the defense table during her

rebuttal argument. The transcript does not reveal what Griffith

said or how loudly he spoke. But Darrow, vexed by Griffith’s
11

commentary, broke off her argument in mid-sentence, turned to him,

and asked, “Would you like to take the stand and testify?”

Almost immediately after Darrow’s comment, the district court

admonished the jury to disregard it. At a sidebar conference,

defense counsel objected to the prosecutor’s comment and moved for

a mistrial. Counsel did not specifically explain the grounds for

his objection, stating only that Darrow’s comment was “totally out

of line, highly improper.” Counsel also stated his opinion that no

admonition to the jury could cure the error. The district court

denied the mistrial motion, but instructed the jury:

Ladies and gentlemen, let me remind you in the strongest

of terms, once again, as I have done in the past, the

defendant is presumed innocent throughout the course of

the trial. He is presumed innocent until such time, if

ever, the government is able to prove his guilt by

evidence beyond a reasonable doubt. That presumption of

innocence, as I will tell you once again in a few

moments, is enough to result in the acquittal of the

defendant in the absence of proof beyond a reasonable

doubt. Mr. Griffith has absolutely no obligation

whatsoever to produce any evidence of innocence at all.

You are to disregard Ms. Darrow’s comments to Mr.

Griffith, and you are to disregard Mr. Griffith’s

apparent outburst.

Defense counsel did not object to this instruction. Nor did

the defense ever request a specific instruction on the Fifth

Amendment privilege against self-incrimination. On appeal,

however, Griffith contends that the district court erred by failing

to specifically instruct the jury on the privilege.

C.

Because the defense did not object to the district court’s

curative instructions at trial, our review is governed by the plain
 

6Rule 52(b) states: “Plain errors or defects affecting

substantial rights may be noticed although they were not brought to

the attention of the court.”

12

error standard. See FED. R. CRIM. P. 52(b).6 See also United States

v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993);

United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc),

cert. denied, ---U.S.---, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995).

An appellate court may correct an error under this standard only if

the appellant demonstrates that there was error; that the error was

“plain;” and that it affected his substantial rights. Id. at 162-

164. 

We conclude without difficulty that the district court erred

by failing to instruct the jury on the Fifth Amendment privilege.

An error is simply “a deviation from a legal rule in the absence of

a valid waiver.” Calverley, 37 F.3d at 162 (citing Olano, 113

S.Ct. at 1777). The prosecutor violated a constitutional rule by

commenting on Griffith’s failure to testify, and the district court

failed in its obligation to correct the error. In the curative

instruction quoted above, the district court reminded the jury that

Griffith was presumed innocent and that the government had the

burden of proving him guilty beyond a reasonable doubt. The court

neglected to tell the jury that Griffith had a constitutional right

not to testify, and that his exercise of that right could not be

held against him. Indeed, the record reflects that the jury was

never instructed on the Fifth Amendment right to remain silent.

Apart from its admonition to disregard the prosecutor’s remark,

then, the district court left the constitutional error uncorrected.
 

7In Carter, the court’s duty to instruct the jury on the Fifth

Amendment privilege arose when the defense requested such an

instruction. In this case, the duty was triggered by Darrow’s

comment. The distinction is immaterial to our analysis.

13

In our view, the error was plain, in the sense that the remedy

for Darrow’s improper comment should have been “clear” and

“obvious.” Cf. Calverley, 37 F.3d at 162. An error is plain if it

is “so conspicuous that ‘the trial judge and prosecutor were

derelict in countenancing [it], even absent the defendant’s timely

assistance in detecting [it].” Id. at 163 (quoting United States

v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816

(1982)). 

In the instant case, the prosecutor’s initial constitutional

blunder was immediately clear. As Darrow herself told this court,

“I knew immediately it was inappropriate, it was improper, and it

should never have come out of my mouth.” The district court

manifestly recognized this, rebuking Darrow, ordering the jury to

disregard her remark, and emphatically--if ineffectually--

instructing the jury on the burden of proof and presumption of

innocence. The proper remedy should have been as obvious as the

initial constitutional error; a Fifth Amendment violation calls for

a Fifth Amendment instruction. Instructions on the burden of proof

and presumption of innocence “are no substitute for [an] explicit

instruction” on the Fifth Amendment privilege. Carter, 450 U.S. at

304, 101 S.Ct. at 1121.7

Nevertheless, Griffith has failed to establish that the

district court’s error affected his “substantial rights.” See
14

Calverley, 37 F.3d at 164 (“The burden of persuasion lies with the

defendant.”). Consequently, we have no authority to correct the

district court’s error. Id.

We must consider the prosecutor’s remark and the judge’s

response in context. “To determine the potential prejudicial

effect of the statements, we must consider the context in which the

prosecutor made them.” United States v. Pierre, 958 F.2d 1304,

1312 (5th Cir.) (en banc), cert. denied, 506 U.S. 898, 113 S.Ct.

280, 121 L.Ed.2d 207 (1992); Fierro, 38 F.3d at 771 (citations

omitted). In determining whether a defendant has been prejudiced

by an adverse comment on his failure to testify, our harmless error

analysis in United States v. Shaw is instructive:

We have found harmless error in cases where reference to

the [defendant’s] silence was neither made nor elicited

by the prosecution; where the prosecution did not “focus

on” or “highlight” the reference; where the comment did

not “strike at the jugular” of the defendant’s defense;

and where there was no further mention of the silence,

and there was “strong evidence” of the defendant’s guilt.

Shaw, 701 F.2d 367, 383 (5th Cir. 1983) (citations omitted), cert.

denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984).

In this case the comment was obviously made by the prosecutor

herself, and at a crucial time when the jury’s attention should

have been riveted on her argument. The potential for serious harm

was present. However, it was an isolated comment, which did not

“strike at the jugular” of the defense, and which the jury was

immediately instructed to disregard. Moreover, no one has

suggested that it was a calculated appeal to the jury; to all

appearances, Darrow’s was a spontaneous remark intended to call
15

attention to Griffith’s disruptive behavior during her argument,

and not to imply that he was harboring guilty secrets. 

Finally, and we think significantly, the prosecution’s

evidence against Griffith was strong. His tape-recorded

conversations, the discovery of approximately 40 pounds of

marijuana in his home, and the seizure of marijuana cigarettes from

his truck are all highly incriminating. We are confident that the

jury, following the district court’s instruction to disregard

Darrow’s comment, convicted Griffith based on the evidence and not

because of his refusal to testify. Accordingly, we find that the

district court’s error did not affect Griffith’s substantial

rights, and that Griffith has failed to satisfy the third prong of

the Olano test.

Moreover, even were we to find that Griffith’s substantial

rights had been affected, we would nonetheless be unable to grant

relief under Rule 52(b). Under the “fourth prong” of the Olano

test, we may exercise our discretion to notice a forfeited error

only when “the error seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” Johnson v. United

States, ---U.S.---, ---S.Ct.---, ---L.Ed.2d---, 1997 WL 235102 (May

12, 1997) (internal quotation marks and citations omitted). In the

circumstances of this case, and particularly in light of the

damning wiretap and physical evidence of Griffith’s complicity in

the conspiracy, a refusal to notice the error would in no way

seriously undermine the “fairness, integrity, or public reputation

of judicial proceedings.”
16

IV.

Griffith challenges two aspects of his sentence. First, he

claims that the district court assigned him a base offense level of

18 based on an erroneous finding that 20.43 kilograms of marijuana

was seized from the Pritchard Road house. See U.S. SENTENCING

GUIDELINES MANUAL § 2D1.1(c)(11) (Drug Quantity Table) (1995).

Second, he claims that his offense level was increased by 2 based

on an incorrect determination that he possessed a dangerous weapon

in connection with the offense. 

Factual findings used in sentencing need only be supported by

a preponderance of the evidence. United States v. Mourning, 914

F.2d 699, 706 (5th Cir. 1990). We review challenges to such

findings for clear error. United States v. Manges, 110 F.3d 1162,

1178 (5th Cir. 1997).

A.

Griffith claims that the marijuana seized from his house

weighed less than 20 kilograms and therefore warranted a base

offense level of 16 rather than 18. See U.S.S.G. §§ 2D1.1(c)(11),

(12). He cites the supposed trial testimony of DEA agent Don

Douglas that the duffel bag found in the bedroom closet contained

39 one-pound bags of marijuana. Thirty-nine pounds equals 17.7

kilograms; therefore, Griffith claims, the district court erred in

its finding that 20.43 kilograms of marijuana was seized.

Griffith misstates the substance of Douglas’ testimony. The

agent stated: “[W]e eventually found 45 pounds of marijuana in the

closet in a green duffel bag.” He testified that there were 40
 

8At one point in its brief, the government appears to concede

that the DEA overstated the weight of the marijuana by failing to

subtract the weight of the plastic wrappers (400 grams). Any such

error was harmless, since the remainder, 20.03 kilograms, still

warrants an offense level of 18.

17

plastic bags of marijuana in total, not 39, and reiterated that

their total weight was about 45 pounds. Perhaps more important, a

DEA lab report cited by the district court in its judgment of

conviction and sentence stated that the marijuana seized from

Griffith’s home weighed 45.05 pounds--the equivalent of 20.43

kilograms.

We perceive no error, and certainly no clear error, in the

district court’s finding that 20.43 kilograms of marijuana was

seized from Griffith’s home.8

B.

The guidelines provide for a 2-level enhancement “[i]f a

dangerous weapon (including a firearm) was possessed . . . .”

U.S.S.G. § 2D1.1(b)(1). This adjustment “should be applied if the

weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” United States v. Broussard, 80

F.3d 1025, 1041 (5th Cir.) (quoting U.S.S.G. § 2D1.1 cmt. 3), cert.

denied, ---U.S.---, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996).

Griffith argues on several grounds that the district court

clearly erred by imposing a 2-level weapon enhancement. The

district court justified the increase on the ground that “the rifle

was found next to the drugs and a loaded magazine was found in

defendant’s residence.” Griffith first attacks the finding that a

loaded magazine was found in the Pritchard Road house. His theory,
18

evidently, is that if no ammunition was found, then it is “clearly

improbable that the weapon was connected with the offense.” 

We reject both the theory and the factual assertion on which

it rests. First, assuming arguendo that no ammunition was found,

it does not necessarily follow that it was “clearly improbable”

that Griffith’s rifle was connected with his offense. There is no

suggestion in the guidelines or commentary that unloaded weapons

are exempt from the 2-level enhancement in Section 2D1.1(b)(1). 

Moreover, even if we were to accept Griffith’s theory, it is

unsupported by the record. In an addendum to the Presentence

Investigation Report (PSR), the probation officer stated that

“according to the DEA agents, a loaded magazine was seized from

Griffith’s house.” The report of a probation officer is generally

considered reliable enough “to be considered by the trial court as

evidence in making the factual determinations required by the

sentencing guidelines.” United States v. West, 58 F.3d 133, 138

(5th Cir. 1995) (quoting United States v. Bermea, 30 F.3d 1539,

1575 (5th Cir. 1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1113,

130 L.Ed.2d 1077 (1995)) (additional citations omitted). Griffith

has proffered no evidence to overcome the presumption that the

documents prepared by the probation officer for sentencing are

accurate and reliable. The district court did not clearly err in

finding, by a preponderance of the evidence, that a loaded magazine

was seized from Griffith’s house.

Griffith next contends that even leaving aside the issue of

the loaded magazine, it was “clearly improbable” that his rifle was
19

connected with the offense. He claims that the weapon was a

souvenir of his Vietnam War service, and that to the best of his

knowledge it was inoperable. However, the DEA tested the weapon

and found it in working order. Moreover, the rifle was not found

in a trophy case or gun cabinet, but in the same closet as the

duffel bag full of marijuana. The nexus between the weapon and the

offense is not difficult to discern. “The Government may satisfy

its burden of proving a connection between the weapon and the

offense by showing that the weapon was found in the same location

where drugs . . . [were] stored . . . .” United States v. Flucas,

99 F.3d 177, 179 (5th Cir. 1996), cert. denied, ---U.S.---, 117

S.Ct. 1097, 137 L.Ed.2d 229 (1997). Accord United States v.

Eastland, 989 F.2d 760, 770 (5th Cir.), cert. denied, 510 U.S. 890,

114 S.Ct. 246, 126 L.Ed.2d 200 (1993). The court below did not

clearly err by concluding that the government met this burden.

Finally, appellant urges this court to extend the rationale of

Bailey v. United States, ---U.S.---, 116 S.Ct. 501, 133 L.Ed.2d 472

(1996), to the present context. We decline to do so. Not only is

Griffith’s argument unpersuasive; it also is foreclosed by our case

law. See United States v. Castillo, 77 F.3d 1480 (5th Cir.), cert.

denied, ---U.S.---, 117 S.Ct. 180, 136 L.Ed.2d 120 (1996).

Bailey involved a federal statute imposing a five-year minimum

sentence on any person who “uses or carries a firearm” in relation

to a violent crime or a drug trafficking offense. 18 U.S.C. §

924(c)(1). The Supreme Court held that the statute required, for

conviction, “an active employment of the firearm by the defendant,
20

a use that makes the firearm an operative factor in relation to the

predicate offense.” Id. at ---, 116 S.Ct. at 505 (emphasis in

original). Griffith contends that the same standard should apply

in the context of U.S.S.G. § 2D1.1(b)(1). The guideline, however,

applies when the defendant “possesses” a dangerous weapon.

“Possession” does not presuppose that the defendant used or carried

the weapon, so Bailey’s “active employment” standard is inapposite.

Moreover, as this court explained in Castillo, “the Supreme

Court took great pains in Bailey to limit its holding to the term

“use” as that term is employed in U.S.C. § 924(c)(1), the statute

at issue in Bailey.” Castillo, 77 F.3d at 1499 n.34. There is no

reason to suppose the Supreme Court would extend Bailey’s reasoning

to the circumstances before us today.

The district court did not clearly err in its determination

that Griffith “possessed” a weapon in connection with his offense,

even if Griffith did not brandish or fire the weapon.

V.

Appellant’s conviction and sentence are AFFIRMED.