United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2566

__________ United States of America, * * Appellee, * * v. * * Brian Matlock, also known as * “Slim,” * * Appellant. *

___________ Appeals from the United States No. 96-2618 District Court for the

___________ District of Minnesota. United States of America, * * Appellee, * * v. * * Tony Howze, also known as * Fatwood and Fats, * * Appellant. *

___________ No. 96-2619

___________ United States of America, * * Appellee, * * v. * * Michael Lipscomb, * * Appellant. *

### The Honorable James M. Rosenbaum, United States Distric t 1 

### Judge for the District of Minnesota. -2- ___________ Submitted: December 10, 1996 Filed: April 1, 1997

___________ Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________ MAGILL, Circuit Judge.
Brian Mat lock, Tony R. Howze, and Michael Lipscomb were arrested on drug co nspiracy charges. Matlock and Howze pled guilty to conspirac y charges for distribut ion and possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (1994). Matlock also pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994). Lipscomb was convicted by a juryof conspiracy to distribute and possess with intent to distribut e cocaine an d cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 84 6 (199 4), and aiding and abetting an attempt to possess with intent t o distribute cocaine an d cocaine base, in violation of 18 U.S.C. § 2 (1994) and 21 U.S.C. §§ 841(a)(1), 846. Matlock and Howze both argue that th e district court erred in applying the sentencing guidelines. Lipscom b 1 argues that there was insufficient evidence to convict and challenges the admission of certain testimony. We affirm. I.

Matlock a nd Howze were co-leaders of a cocaine distribution network that operated in Minneapolis, Minnesota from at least

### Creque remains a fugitive from the law. 2 

### -3- December 1994 through June 10, 1995. See Matloc k Plea Agreement (Jan. 26, 1996) at ¶¶ 1, 9A; Ho wze Plea Agreement (Feb. 2, 1996) at ¶¶ 1, 7. On at least two occasions, Matlock and Howze attemptedto possess with intent to distribute cocaine and cocaine base sent to them by Marvin Creque, their supplier in Florida. Id. at ¶ 1; Matlock Plea Agreement at ¶ 1. On each occasion, Creque sent the package of drugs by express mail.

The first package, which contained three kilograms of cocaine an d three ounces of cocaine base, was intercepted and seized by law enforcemen t officials on May 5, 1 995, as part of an ongoing drug investigation. This package was never delivered.

On June 9, 1995, law enforcement officials intercepted the secon d package s ent by Creque. After replacing the bulk of the drugs with a noncontrolled substance, an undercover police of ficer posing as a delivery per son delivered the package, as addressed, to the residence of Howze' s stepmo ther, Patricia Lomax. Lipscomb received the package at Lomax' s residence and signed for it using a false name. The police then arrested Matlock, Howze, Lipscomb, and Lomax. In addition, the police arreste d several ot hers involved in the distribution of the cocaine as well a s Ma tlock's live-in girlfriend, Yolanda Washington, who helped Matloc k prepare the cocaine for distribution. 2

Matlock and Howze pled guilty to drug conspiracy charges. Matloc k also pled guilty to being a felon in possession of a firearm. Pursuant to individual plea agreements, both Matlock and Howze stipulated to being leaders of a drug conspiracy, and the partie s stipulated that Matlock and Howze should each receive a

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two-level upward sentencing adjustment under U.S.S.G. § 3B1.1(c) because of their leadership roles.

In Matloc k's plea agreement, the government also agreed to move for a d ownward sentencing departure pursuant to U.S.S.G. § 5K1.1 if Matloc k substantially assisted the government in the prosecution of hi s codefendants. The pl ea agreement further provided that "the government .

. . will decide whether the defendant has cooperated sufficiently t o warrant a motion for downward departure." Matlock Plea Agreement at ¶ 5.

At tria l, Lipscomb was convicted by a jury of conspiracy t o distribute and possess with intent to distribute cocaine and cocaine base. He was al so convicted of aiding and abetting an attempt to possess wit h intent to distribute cocaine and cocaine base. His codefendant at trial, Lomax, was acquitted.

The e vidence against Lipscomb consisted mainly of wiretappe d telephone conversations. One such conversation involved Matlock telling Lipscomb to deliver a quantity of cocaine to a particular customer known
as "Larry Love." Another conversation involved a discussion of the June 9 drug shipment that law enforcement officials later intercepted an d delivered to Lipscomb at Lomax's residence. In addition, law enforcement officials searched Lipscomb's apartment and seized a list containing the names of known cocaine customers followed by numbers denoting dru g quantities as well as an electronic scale of the type commonly used i n weighing drugs. The gove rnment also called Matlock to testify pursuant to his ple a agreement against Lipscomb and Lomax. He initially refused to enter the courtroomwhen called as the government's first witness. When Matloc k finally did take the stand, the testimony he gave

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minimized the roles played by both Lipscomb and Lomax. His trial testimony was far less incriminating and far less helpful to the government than the sworn testimony he ga ve at his plea hearing. Moreover, the day after the trial, Matlock called the prosecuting attorney and left a message on his answer ing machine. In the message, Matlock informed the prosecutin g attorney that "yesterday, uh, was practically a act. I mean, I didn't wan t nobodyto see uh --as well as, as well as some concern as well--but, but basicallyit was a act. You know, facing everybody out there, uh, I had to show some kinda, some kinda somethin' yeah." Message from Matlock (Feb
. 13, 1996), reprinted in Appellee's App. at 10.
In respon se to Matlock's trial testimony, the government sought and obtained permission, over Lipscomb's objections, to read excerpts to the jury from Matlock's prior plea hearing testimony. The plea hearin g testimony incriminated both Lipscomb and Lomax. In particular, Matlock ha d previously testified at his plea hearing that Li pscomb had delivered drugs for hi m to Larry Love and that Lipscomb went to Lomax's residence t o receive a shipment of drugs that would later be distributed.

At sen tencing, the district court increased both Matlock's an d Howze's offense levels by four levels for their leadership roles in th e cons piracypursuant to U.S.S.G. § 3B1.1(a), notwithstanding th e government's stipulation to a two-level enhancement. Both Matlock’s and Howze’s plea agreements expressly provided that the district court was not bound by the stipulat ions of the parties. Matlock Plea Agreement at ¶ 6; Howze Plea Agreement at ¶ 4. At sentencing, the district court found that the following fiv e ind ividuals participated in the conspiracy: Matlock, Howze, Lipscomb , Cre que, and Washington. Matlock Sent. Tr. at 20. The court als o considered several subdistributors of cocaine that

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participated in the criminal activity. Id. At Howze's sentencing hearing , the district court referenced his findings in Matlock's sentencing hearing , stating that "this gr oup clearly involved five or more." Howze Sent. Tr. at 7. Matlock, Howze, and Lipscomb appeal.

II.
Matlock and Howze challenge the district court's decision to in crease their respective offense levels by four pursuant to U.S.S.G. § 3B1.1(a). Section 3B1.1(a) call s for a four-level increase in a defendant's offense level "[i]f the defendant was an organizer or leader of a criminal activit y that inv olved five or more participants . . . ." U.S.S.G. § 3B1.1(a)
. Matlock and Howze argue that the district court clearly erred when it foun d tha t five or more persons were involved in the criminal activity. W e disagree.

We review a district court's finding of the number of person s involved in a criminal activity for clear error. See United States v
. Smith , 62 F.3d 1073, 1079 (8th Cir. 1995), cert. denied , 116 S. Ct. 82 6 (1996). F or purposes of U.S.S.G. § 3B1.1(a), “[a] 'participant' is a person who is criminally responsible for the commission of the offense, bu t need not have been convicted." U.S.S.G. § 3B1.1, comment. (n.1). Th e person being sentenced is counted as a participant in determining the tota l number of participants. See United States v. Kenyon , 7 F.3d 783, 785-86 (8th Ci r. 1993); see also United States v. Logan , 54 F.3d 452, 456 (8t h Cir. 1995) ("More tha n one person in a conspiracy can qualify as a leader or organizer."). Par ticipants also include intermediaries who sell drugs on beha lf of the defendant. See United States v. Miller , 91 F.3d 1160 , 1163-64 (8th Cir. 1996).

### -7- Given the participation of Matlock, Howze, Lipscomb, Creque , Washington, and the several subdistributors named by the district court, it was not clearly er roneous for the district court to have found that at least five persons were involved in the criminal activity. Therefore, the district court did not err in applying § 3B1.1(a).

III.

Matlock argues that the district court erred in denying his motio n for an order requirin g the government to make a U.S.S.G. § 5K1.1 downward departure motion. Specifically, he argues that the government's refusal to bring a § 5K1.1 motion for substantial assist ance was irrational and in bad faith. We disagree.

Under § 5K1.1, the district court can depart downward from th e senten cing guidelines "[u]pon motion of the government stating that th e defenda nt has provided substantial assistance in the investigation o r prosecuti on of another person who has committed an offense . . . . " U.S.S.G. § 5K1.1. It is well settled “that the court is without authority to gra nt a downward departure for substantial assistance absent a governmen t motion." United States v. Kelly , 18 F.3d 612, 617 (8th Cir
. 1994) (citations omitted). "The government's refusal to file a substantial-assistanc e motion is reviewable only when the defendant makes a substantial threshold showing that the refusal was irrational or based on an unconstitutional motive." United States v. Nicolace , 90 F.3d 255, 258-59 (8th Cir. 1996) (citing Wade v. United St ates , 504 U.S. 181, 185-87 (1992)). Matlock has not met this burden. Despite a plea agreement obli gating Matlock to cooperate in the prosecution of his

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codefen dants, he initially refused to enter the courtroom when he wa s called as the government's first witness in the trial of Lipscomb an d Lomax. When he finally did testify at trial, he attempted to minimize the roles that Lipscomb and Lomax played in the cons piracy whereas his earlier plea hearing testimon y had been far more incriminating. Finally, Matlock admitte d that his testimony “was practically a[n] act.” Message fro m Matlock, reprinted in Appellee’s App. at 10.

In the plea agreement, the government expressly conditioned it s obligat ion to file a § 5K1.1 motion on the government's discretionar y assessment of whether Matlock provided substantial assistance. See Matloc k Plea Agreement at ¶ 5. Given his near total lac k of cooperation at trial, Matlock has not made a substantial showing that the government's decision to refuse to file a § 5K1.1 motion was irrational or in bad faith. Cf
. United States v. Johnigan , 90 F.3d 1332, 1339 (8th Cir. 1996) (holding tha t the d efendant had not made a substantial threshold showing that it wa s irrational for the go vernment to refuse a § 5K1.1 motion at least in part beca use "the government . . . expressed the view that the assistanc e provided by [the defendant] turned out to be unreliable" and "described hi s assistance as having negative value"); Nicolace , 90 F.3d at 259 (holding that the defendant ha d not made a substantial threshold showing where the government found his information unhelpful).

IV. Pointing to the increased penalties for cocaine base as compared to cocaine, Howze challe nges his sentence for distribution and possession of cocaine base on equal protection grounds. Howze's argument lacks merit. See United States v. Macklin , 104

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F.3d 10 46, 1050 (8th Cir. 1997); United States v. White , 81 F.3d 80, 8 4 (8th Cir. 1996); United States v. Delaney , 52 F.3d 182, 189 (8th Cir.) , cert. denied , 116 S. Ct. 209 (1995); United States v. Clary , 34 F.3d 709, 710-14 (8th Cir. 1994), cert. denied , 115 S. Ct. 1172 (1995).

V. Lipscomb argues that there was insufficient evidence to convict him of drug conspiracy charges and of aiding and abetting charges. W e disagree.

When considering a claim that the evidence was insufficient t o sustain a verdict, we review the evidence in the light most favorable to the verdict and grant all reasonable inferences in favor of the verdict. United St ates v. Melina , 101 F.3d 567, 573 (8th Cir. 1996). "We wil l reverse o nly 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 essential elements." Id. (quotations and citation omitted). To prove that Lipscomb “engaged in a drug conspiracy, the government
mus t demonstrate that an agreement existed between at least two people ; that the defendant knew of the conspiracy; and that the defendan t intentionally joined the conspiracy." United States v. Rogers , 91 F.3d 53 , 57 (8th Cir. 1996). To prove that Lipscomb enga ged in the distribution of cocaine and cocaine base, the go vernment must show that Lipscomb “knowingly sold or otherwis e transferred” cocaine and cocaine base. Id.
Viewe d in the light most favorable to the verdict, Matlock's ple a hearing testimony and the wiretapped phone conversations were

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suffi cient to sustain Lipscomb's conviction for drug conspiracy an d distri bution. This evidence proved that Lipscomb delivered cocaine t o Larry Love at the behest of Matlock.
To sustai n Lipscomb's conviction for aiding and abetting an attempt to posse ss with intent to distribute cocaine and cocaine base, th e govern ment must prove that Lipscomb: (1) "associated himself with th e unlawful venture;" (2) "participated in it as so mething he wished to bring about;" and (3) "sought by his actions to make i t succeed." United States
v. Du ke , 940 F.2d 1113, 1117 (8th Cir. 1991) (quotations and citation s omitted). Viewed in the light most favorable to the verdict, Matlock' s plea hearing testimony, the wiretapped conversat ions, and the testimony of law en forcement officials who made the controlled delivery proved tha t Lipscomb went to Lomax's house to receive the express mail package of drug s sent by Creque for distribution by Matlock and Howze. This evidence is fa r more than sufficient to sustain the aiding and abetting charges of which Lipscomb was convicted. Cf. United States v. Ro ach , 28 F.3d 729, 737 (8th Cir. 1994) (holding that evidence was sufficient to sustain aiding an d abetting conviction where videotape evidence and trial testimony, whil e "not overwhelming," tended to prove the defendan t's active participation); Duke , 940 F.2d at 1117 (holding that evidence was sufficient to sustai n aiding and abetting conviction notwithstanding that there was onl y "circumstantial evidence" indicating the defendant's active participation)
.
VI. Lipscomb challenges the district court's decision to admit portions of Matlock's plea hearing testimony into evidenc e pursuant to Federal Rule of Evidence 801(d)(1)(A) after Matlock had already

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testified at trial as a government witness. Under Rule 801(d)(1)(A), a statement is not hearsay if: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and th e statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding . . . .

Fed. R . Evid. 801(d)(1)(A) (emphasis added). Lipscomb argues tha t Matloc k's plea hearing testimony does not fall within Rule 801(d)(1)(A ) because Matlock's ple a hearing testimony and his trial testimony were not inconsistent. We disagree. In applying Rule 801(d)(1)(A), "inconsistency is not limited t o diamet ricallyopposed answers but may be found in evasive answers , inabilityto recall, silence, or changes of position." United States v. Russell , 712 F.2d 125 6, 1258 (8th Cir. 1983) (per curiam) (quotations and citati ons omitted). The district court has considerable discretion i n determining whether prior statements are inconsistent with trial testimony
. Id. ; United States v. Thompson , 708 F.2d 1294, 1302 (8th Cir. 1983).
At trial, Matlock attempted to minimize the role played by Lipscomb in the dru g conspiracy. His testimony was far less incriminating an d therefore far less helpful to the government than his prior plea hearing testimony. For this reason, we conclude that the district court did not err in determining that Matlock's statements at trial were sufficientl y inc onsistent with his prior plea hearing testimony for his plea hearin g testimonyto be admitted. Cf. Russell , 712 F.2d at 1258 (holding tha t "[the witness's] statement on the stand that he could not recall having any contact with [the defendant] around the time he cashed the forged postal money orders is sufficiently inconsistent with his

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grand jury testimony for the trial court to admit the previous testimony [under Rule 801(d)(1)(A)]"); Thompson , 708 F.2d at 1302 (holding that "the cou rt did not abuse its discretion in view of [the witness's ] recalcitrance").

VII. For the foregoing reasons, we affirm the district court.
A true copy.

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