United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1021

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Brian Dierling, * * Defendant - Appellant. *

___________ Appeals from the United States District No. 97-1023 Court for the Eastern District of Missouri

.

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Mark Perkins, * * Defendant - Appellant. *-2-

___________ No. 97-1024

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Louis Younger, * * Defendant - Appellant. *

___________ No. 97-1026

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Arthur Holt, also known as Artie, * * Defendant - Appellant. *

___________ Submitted: September 11, 1997

Filed:

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

___________The Honorable Carol E. Jackson, United States District Judge for the Eastern 1 District of Missouri. -3- MURPHY, Circuit Judge.

Appellants Brian Dierling, Louis Younger, Arthur Holt, and Mark Perkin s appeal their convictions and

sentences for conspiracy to manufacture, distribute, and possess with intent to distribute met hamphetamine in violation of 21 U.S.C. § 846. They seek a new trial or resentencing because of c laimed errors, including improper admission of evidence, a joint trial, failure of the district court to provide immunity to thei r 1 wi tnesses and of the government to furnish Brady material, and several sentencin g issues. We affirm.

I.
A one count indictment charged appellants with a conspiracy to manufacture and distribute metham

phetamine in Missouri and Illinois. There was evidence at trial that Dierlin g, Younger, and Holt were manufacturing methamphetamine in a clandestin e laboratory on Dierl ing’s property and that they and Perkins were distributing the drug to unindicted coconspirators for resale and also directly to users. Dierling oversaw the manufacturing operations, the procurement of materials for the laboratory, and the drug distribu tion. Younger was Dierling’s partner and held recipes for manufacturin g methamphetamine. The involveme nt of Holt and Perkins was less important, but each sold methamphetamine to dealers and users and each picked up drugs and dropped off money at Dierling’s property. Holt also assisted in the manufacturing operations.

There were a number of sources of evidence about the conspiracy, includin g detailed testimony from associates. Bobby Collis testified that Dierling told him he was making methamphetamine in one pound blocks, that Arthur Holt was “moving crank-4-

for him,” and that Holt had been arrested with his drugs. Cindy Craig, who lived with Young er, testified that he told her that he and Dierling made and sold drugs together, that he showed her as many as ten recipes for making methamphetamine, and that he described to her their manufacturing operations and the quality of the drugs they were maki ng. She once went to Dierling’s house with Younger and saw conspirator s packaging and weighing drugs in the bedroom.
Stephanie Nickell reported that she had seen Dierling, Younger, and Dann y Craig co oking methamphetamine at Dierling’s house and had observed cantaloupe

sized quantities of methamphetamine at Younger’s residenc e during the period she was
se lling drugs for him. She helped Dierling, Holt, and Younger packag e methamphetamine and took some to sell herself. Craig told her that he was also selling methamphetamine for Dierling. Nickell boug ht items for the methamphetamine lab for Younge r and Dierling. Dierling gave her a handgun for her protection because dru g dealers in the area were selling poor quality methamphetamine and attributing it to him; he feared reprisals.
Candy True testified that Younger delivered drugs to an unindicted coco nspirator forresale and that she went with him to Dierling’s farm where he picked u p methamphet amine. She testified that on another occasion she went to the farm with Perkins, Holt, and Holt’s daughter; Holt went into the barn to get methamphetamine. S he also saw Younger, Holt and Perkins all deliver drugs on separate occasions to a coconspirator who would resell them.

Michelle Crawford testified that she sold ten “eight balls” of methamphetamine on a daily basis for Holt, whose source was Dierling. She saw Dierling deliver a sixinch wide, four-inch tall amount of methamphetamine to Holt. In October of 1994 she went to an a partment with Holt where she saw Dierling with some ten pounds o f methamphetamine, money, and guns. Holt took methamphetamine from the apartment and in return left three envelopes which contained money she had previously counted.Both Holt and Perkins told Michelle Crawford th ey had been carrying drugs for 2 Dierling when they were arrested. -5- Between Oct ober of 1994 and May of 1995, Crawford, Holt and/or Perkins mad e ap proximately 10 trips to Dierling’s farm and obtained at least five pounds o f methamph etamine on each trip, which they would package in smaller quantities fo r distribution. Holt and Perkins also went once o r twice a week without her to get drugs from Dierling.
George H eller testified that Younger took him to Dierling’s property to tow a car, and he s aw Holt and Dierling there with guns and radios and noticed the are a smelled like chemicals. He overheard Holt tell Younger that “[i]f a nything goes wrong, we’ll know who brought them here.”

Law e nforcement officers also obtained evidence about the existence of th e conspiracy. Missouri state troopers twice arrested Perkins and Holt, seizing ove r $11,0 00 cash, weapons and methamphetamine. An undercover officer purchase d 2 methamphetamine from Holt on o ne occasion and discussed with him the resale of the drugs and the fact that he might need more later. A search of Holt’s home reveale d digital scales, plastic baggies, and drug notes. Police also seized methamphetamin e fromHolt’ s car and over $2,800 cash from his person when they responded to a dis turbance call at a bar. A deputy sheriff arrested Dierling and remove d approximately $1,100cash, methamphetamine, and syringes from him. Officers from the Putnam County sheriff’s department seized syringes and methamphetamine during
a search of Younger’s home, and officers saw materials commonly used i n methamphetamine laboratories in Dierling’s barn when they went to his property t o answer a domestic dispute call.
Appellants were found guilty a fter a two and a half week jury trial. The district court then received additional evidence at a sentencing hearing and found that the-6-

conspiracy involved 10 to 30 kilograms of methamphetamine and applied four leve l sentenc e enhancements to Dierling and Younger for their roles in the conspiracy an d two separate enhancements to Dierling for obstruction of justice. Dierling and Younger
were sentenced to life imprisonment, Holt to 360 months, and Perkins to 235 months.
Appellants argue on appeal that th ey are entitled to a new trial because the court admitte d inflammatory evidence about acts that were neither foreseeable nor i n furtherance of the conspiracy, refused to sev er their cases despite the risk that evidence of unrelated acts by coconspirators wo uld improperly influence the jury, and refused to provid e judicial immunity for their witnesses. They also rely on the government’ s alleged failure to disclose material required by Brady v. Maryland , 373 U.S. 83 (1963),
an d they contend that the court improperly considered unreliable testimony i n calculating the amount of drugs involved in the conspir acy. Finally, Dierling challenges the enhancements for his leadership role and for obstruction of justice.

II.

A.

All appella nts claim they are entitled to a new trial because of inflammatory evid ence they view as unrelated to the conspiracy. They say they were unfairl y prejudiced by evidence of the killing of Danny Craig, the burning of Dierling’s barn, the shootin g of a deputy sheriff, and the discovery of a cache of weapons on Dierling’ s property.
The government contends that the evidenc e about the killing was directly related to the conspiracy because Dierling and Younger killed Craig, a coconspirator, over a drug d ebt he owed Dierling. Craig was a heavy methamphetamine user, and h e participated in the conspiracy’s manufacturing operations, packaged methamphetamine for sale, and dealt drugs for Dierling. In late May or early June of 1995, Craig took a-7-

weekend trip for the purpose of selling drugs, but used them himself i nstead. Craig later told government witness Candy True that Dierling was upset with him and that he owed Dierling drugs and money. Michelle Crawford testified that soon thereafter Perkins and Holt ad ministered a severe beating to Craig, explaining to him that “Brian said yo u shouldn't have did what you did.”
Stephanie Nickell testified that in the spring of 1995, Dierling told her he ha d placed a contract for $10, 000 on Craig’s life, and on June 9 he and Younger asked her to take them to Craig. She led them to a party attended by Craig where Dierling yelled that Craig had his money. Dierling ordered Craig to drive out to his house with Nickell; Dierling and Younger followed. At Dierling’s house Nick ell saw Younger and Dierling prod Craig into a utility room near the living room. She heard Craig scream and then two guns hots. Younger came out of the utility room and asked her for the keys to her vehicle. She went outside with him and saw Craig lying motionless in the back of her truck w ith gunshot wounds in his chest. Dierling, Younger, and Nickell then drove in the truck to Younger’s house. On the way Dierling indicated that Craig would not be rip ping off anyone any more. Once on Younger’s property, Younger and Dierlin g pulled Craig from the truck and got a knife out of it. Nickell heard c hopping sounds and then saw Dierling hold up Craig’s severed head by the hair. Younger threatened that he would do the same thing to her if she crossed him. The three then drove back t o Dierling’ s property after stopping to show the head to an acquaintance, Jess Mahurin. Dierling drove off in Younger’s car, and Younger and Nickell conti nued on to a friend’s house in her truck, stopping at a car wash along the way to clean the bed of the pickup.

The government also presented evidence that Dierling burned his barn and house to conceal evidence of the conspiracy. A police officer testified that he went t o Dierling’s h ome on July 15, 1995, in response to a domestic dispute call, and sa w materials commonly used to man ufacture methamphetamine in the barn. A week later, a neighbor noticed Dierling drive up his driveway, remain there briefly, and then leave-8-

shor tly before his house and barn were seen to be on fire. An investigator from th e Missouri Divi sion of Fire Safety concluded that the fire had been set intentionally, but could not say who started the blaze. Police arrested Dierling in connection with th e
arson on the following day and seized $1,100 and some methamphetamine from hi s person. Bobby Collis testified that while they were in jail together Dierling admitte d to him that he had set the fire in order to destroy parts of a methamphetamine laboratory he could not move.
Appella nts also challenge the admission of evidence of a high speed car chas e involving Dierling and Adair County deputy sheriff Leonard Clark, as well as evidence tha t Dierling shot Clark and had a variety of weapons on his property. Dierling fle d when Clark attempted to stop and arrest him for violation of a protection order. A chase ensuedwhich ended in Dierling’s shooting and wounding Clark (Dierling was in turn shot by Clark.).

B.

We review the trial court’s evidentiary rulings for abuse of discretion, keepin g in mind that its discretion is particularly broad in a conspiracy trial. United States v

. Searin g , 984 F.2d 960, 965 (8th Cir. 1993). In order to establish the existence of a conspiracy the government must prove that at least two persons entered into a n agreement with an objective to violate the law. United States v. Wilson , 103 F.3d 1402, 1406 (8th Cir. 1997). Acts c ommitted in furtherance of a conspiracy are admissible as circumstantial evidence that the agreement existed, Blumenthal v. United Sta tes , 88 F.2d 522, 531 (8th Cir. 1937), unless the evidence causes “unfair prejudice, substantiall y outweighing probative value” under Fed. R. Evid. 403. See United States v. McRae , 593 F.2d 700, 707 (5th Cir. 1979). The critical issue is “the degree of unfairness of the prejudicial

evidence and whether it tends to support a decision on an improper basis.” United State s v. Payne , 119 F.3d 637, 645 (8th Cir.), cert. denied , No. 97-6358, 1997 WL 644822 (U.S. Nov. 17, 1997).N ickell did not approach authorities with the information she possessed, bu t 3 revealed it in the course of questioning after jailers heard her screaming durin g nightmares she had in j ail. The sheriff testified that after he took her to the jail doctor she mentioned the Craig killing. -9- The record indicate s that the killing of Danny Craig was admissible evidence of an act committed in furtherance of the conspiracy and therefore relevant and not unfairly pr ejudicial to the appellants. Craig was actively involved in the conspiracy, and hi s eliminat ionresulted from his drug debt to Dierling. The slaying was an act by th e conspirac y’s leaders to control a subordinate member of the conspiracy. See Untie d States v. Tra munti , 513 F.2d 1087, 1118 (2d Cir. 1975). The evidence showed th e lengths the conspirators would go to protect their interest in the long term viability of the cons piracy. See United States v. Meester , 762 F.2d 867, 874 (11th Cir. 1985). It also demonstra

ted concerted drug-related action by all conspirators. Holt and Perkins caught and beat Craig and told him Dierling was upset. Dierling and Younge r committ ed the actual killing in Dierling’s home, the center of the operation. Th e evidence was probative of a conspiracy involving all appellants.
Appellants question the sufficiency of the evidence that the killing actuall y occurred. Craig’s body was never found, and t he only direct evidence at trial about the kill ing was the eyewitness testimony of Stephanie Nickell. The evidence and th e credibility of the witnesses were for the jury to weigh, however, and Nickell wa s thoroughly cross-examined. There was also corroboration of her testimony by evidence 3 about Craig’s disappearance and the evidence supplied by Michelle Crawfor d sug gesting Perkins and Holt beat Craig as part of Dierling’s retaliation against him

. Although the sl aying evidence was violent and grisly in nature, there was testimony to
conn ect it directly to the drug business of which appellants were accused. Craig took D i erling’s drugs and didn’t pay him, and brutal consequences followed to enforce the rules of the business. The district court did not abuse its discretion in determining that the probative value of the slaying evidence outweighed any prejudicial effect.-10-

Appellants also object to the evidence related to the burning of Dierling’s barn and house on th e grounds there was no proof Dierling was responsible or that the burning s were linked to the conspiracy. They claim that the fires were related to Dierling’s marital problems and pending divorce from his wife who lived on the property. Younger , Perkins, and Holt argue that the evidence was especially prejudicial to them since they could not have foreseen the fire. The evidence linking the fire to Dierling and the methamphetamine operation was sufficient to find that it was an act to protect the conspiracy. The fir e follo wed the visit of law enforcement officers who were thus able to see incriminatin g evide nce. It was not unforeseeable to the coconspirators that Dierling would take steps to eliminate the evidence, and Collis test ified that Dierling told him he had set the fire for that purpose. The district court did not abuse its discretion in admitting this evidence.
Appellants claim that Dierling’s flight from deputy Clark when he atte mpted to stop him and the subsequent shooting of Clark were not in furtherance of the conspirac y because Clark intended to arrest Dierling for violating a domestic protection order. Flight from law enforcement officers can be probativ e of consciousness of guilt and may further a conspiracy. See United States v. Roy , 843 F.2d 305, 310 (8th Cir. 1988). The intended purpose of the attempted stop need not be related to the conspiracy. Id. The real question is what is in the mind

of the person who flees and whether there is sufficient evidence to allow the inference that the flight was prompted by consciousn ess of guilt. Id. There was evidence that Dierling was on a drug-related errand when Clark attemp ted to stop him and that Dierling was aware that the authorities knew about his drug ac tivities. The jury could have deter mined that the high-speed flight was intended to protect and maintain th e conspiracy, a nd this was not the only evidence it heard about flight by a conspirator

. Dierling had evaded capture by the p olice on an earlier occasion while on his way to buy metham phetamine production materials. Younger was involved in two high-spee d pursuits after he refused to pull over his motorcycle when police attempted to stop him for trafficYounger was returning from a drug deal when the first chase occurred, and the 4 police recovered $2100.00 cash, methamphetamine, and syringes; he was on his way to sell drugs the next time, and knives, a scale, and drugs were found on him. -11- vi olations. There was also evidence that Dierling made statements indicating hi s

4 willingness to harm law enforcement officers in order to protect his drug activities. The evidence of the chase and shooting of Clark was relevant to the conspiracy, and the court minimized any unfair prejudic e to other conspirators by instructing the jury that it should consider the shooting only against Dierling.
Young er and Perkins challenge the admission of evidence of a large cache o f weapons seized from Dierli ng’s home and argue there was no showing that the guns and knives were related to the conspiracy. Weapons are key tools in the drug trade and can be evidence of a drug conspiracy. See United States v. Emmanuel , 112 F.3d 977, 979-80 (8th Cir. 19 97). Weapons played a significant role in this conspiracy. Police recovered a military-style assault rifle from Dierling’s truck, a long with cash and methamphetamine, when he was arrested for arson. Dier ling shot deputy Clark with a .357 caliber handgun, andhe apparently became associated with Younger after he shot him by accident when aiming at his drug associate. The weapons were relevant to the consp iracy charge and not unfairly prejudicial in light of all the evidence of the operations of the conspirators.
Finally, Dierling’s argument th at the evidence about the slaying, fire, and shooting was inadmissible other crimes evidence under Fed. R. Evid. 404 (b) is incorrect. This was
ev idence tending to show that a conspiracy existed among the appellants and how i t opera ted. “Direct evidence of participation in a conspiracy is probative of the crim e charged a nd thus does not constitute other crimes evidence within the meaning of rul e 404(b).” United States v. Kinshaw , 71 F.3d 268, 270 (8th Cir. 1995).-12- III.

A.
Younger argues that his conviction sh ould be reversed because the trial court refused to provide immunity for his witnesses. Younger attempted to call Shawn Russell and Jess Mahurin who both refused to testify after the court appointed counsel for th em and they were advised of their fifth amendment rights. Younger asked the court to grant immunity to the witnesses or require the governme nt to offer it, but the court declined. Younger claims that since the prosecution relied on immunized witnesses to present its case and his witnesse s would have offered exculpatory testimony, the court’s refusal to offer immunity violated his rights under the compulsory process clause of the sixth amendment. Young er speculates that Russell would have testified that he had s een Danny Craig alive after the alleged killing and that Step hanie Nickell had lied. He also says that Mahurin would have denied ever seeing Craig’s severed head or seeing Dierling, Younger, or Nickell on the night of the killing.
Younger had no right to judicially im posed immunity for his witnesses. No power or duty to grant judicial immunity has been recognized in this circuit. United States v. Robaina , 39 F.3d 858, 863 (8th Cir. 1994); United States v. Hardrich , 707 F.2d 992, 994 (8th Cir

. 1983). Use immunity has been ordered elsewhere on occasion for a witness with “clearly exculpatory” evidence where there is no strong countervailing interest of the government

. Gov’t of the Virgin Islands v. Smith , 615 F.2d 964, 972-73 (3d Cir. 1980). There is n o
reason in this case to examine the policy implications of judicial involvement in us e immunity, see, e.g. , United States v. Capozzi , 883 F.2d 608, 613-614 (8th Ci r. 1989); United States v . Turkish , 623 F.2d 769 (2d Cir. 1980), because Younger has not shown that th e propose d testimony was clearly exculpatory. There was enough evidence to convict th e appellants of conspiracy without evidence of the killing, and there was no deliberat e distortion of the truth-finding process by the government, and no government misconduct or threats toYounger additionally sought court-imposed immunity for Paul Smith and D ebbie 5 Bramlett, but their testimony was also not clearly exculpatory. -13- witne sses. The court did not err in declining to grant judicial immunity to Younger’ s witnesses. 5

B.
Younger objects to exclusion of testimony by his investigator about statements made by Mahurin and Russell in interviews. The te stimony was excluded by the trial court on the g rounds it was hearsay and the witnesses were not unavailable within the meaning of Fed. R. Evid. 804(b)(3) and 804(b)(5). The government concedes the wit nesses were unavailable because of their assertio n of the fifth amendment, but it argues the evidence is inadmissible under eith er exception because both rules require trustworthiness. The trial court did no t make a spe cific reliability determination, but both 804(b)(3) and 804(b)(5) permit th e admission of evidence from an unavailable witness only if it has indicia of trustworthiness. The trustworthine ss requirement was not satisfied here, and there was therefore no error in exclusion of the testimony. See United States v. Thomas , 919 F.2d 495, 498 (8th Cir. 1991). Moreover, the statements which Younger claims Rus sell or Mahurin would make would not have subjected them to criminal liability , a requirement under Rule 804(b)(3), United States
v. Hazelett , 32 F.3d 1313, 1317-18 (8th Cir. 1994), and Rule 804(b)(5) is applicable only in exceptional circ umstances not present here. United States v. Gaines , 969 F.2d 692, 697 (8th Cir. 1992).

C.
Perkins argues that the court abused its discretion by refusing to allow him to impeach government witness Michelle Crawf ord by introducing an interview report of a DEA agent. According to this report Crawford told the agent that she saw Perkins-14-

beat Danny Craig, cut him with a large knife, and throw him into a ditch. She also said that Perkins had intimated to her that he had fed Craig’s body to some ho gs. Counsel for Perkins questioned Crawford at trial about her intervie w but did not ask her about the hog statement
or attempt to introduce the contents of the report against her. Instead, Perkins offered the repor t during the testimony of the DEA agent in order to impeach Crawford’s testimony

. The court did not err in refusing to admit the report. Rule 613(b) allows impeachment by prior inconsistent statement only when a witness is first provided an opportunity to explain the statement. See United States v. Sutton , 41 F.3d 1257, 1260 (8th Cir. 1994). Moreover, the statement was not inconsistent with Crawford’s testimony, see United States v. Hale , 422 U.S. 171, 176 (1975); United States v. Cody , 114 F.3d 772, 776 (8th Cir. 1997), and th e court invited Perkins to offer the statement in his case-in-chief, but he declined.

IV.
Holt challenges the failure of the tria l court to give a special instruction to the jury on how the government witnesses interpreted their immunity agreements. He argues that the witnesses’ testimony about immunity differed from the wording of their agreements and that
an in struction was therefore necessary. Appellants questioned the witnesses about thei r agreements at trial, and they were free to argue to the jury about the agreements, how th e witnesses interp reted them, and credibility. Instructions 5 through 17 explained to the jury the fa ctors it should consider in evaluating credibility. The immunity agreements, prio r convicti ons, and government payments for assistance were included in the explanation

. Ther e was no need to give an additional instruction in these circumstances. See Unite d States v. Ri dinger , 805 F.2d 818, 821 (8th Cir. 1986); United States v. Bowman , 798 F.2d 333, 336 (8th Cir. 1986).-15- V.

You nger, Holt, and Perkins contend it was reversible error not to sever their case s from that of Dierling be cause there was evidence admitted at their joint trial concerning his independen t

criminal activity, causing the jury to find them guilty because of thei r association with hi m. Holt adds that he was entitled to a severance because of evidence of acts that were not foreseeable to him or committed in furtherance of the conspiracy and that would not have been admissible if he had been tried alone.
Only an abuse of discretion resulting in definite prejudice requires reversal of a conviction based on denial of a motion to sever. United States v. Delpit , 94 F.3d 1134, 1143 (8th Cir. 1996). A joint trial is appropriate for those charged with conspiracy where proof of the charge s is based on common evidence and acts. United States v. Stephenson , 92 4 F.2d 753, 761 (8th Cir. 1991) (quoting United States v. Jackson , 54 9 F.2d 517, 523 (8th Cir. 1977)); s ee also United States v. Kindle , 925 F.2d 272, 277 (8th Cir. 1991). Where there
are multiple criminal acts in furtherance of a conspiracy, each defendant need not hav e participated in every act for a joint trial to be appropriate. Delpit , 94 F.3d at 1143; United States v. Jon es , 880 F.2d 55, 62-63 (8th Cir. 1989). It does not matter that there may b e
va rying strength in the evidence against each defendant. Stephenson , 924 F.2d at 76 1 (quoting Jackson , 549 F.2d at 52 5). In order to prevail appellants must establish either that
a spe cific trial right was prejudiced or that a joint trial prevented the jury from making “ a reliabl e judgment about guilt or innocence.” Zafiro v. United States , 506 U.S. 534, 53 9 (1993).
It was appropriate to try appellants tog ether. There was evidence that the challenged acts were committed in furtherance of the conspiracy so they would have been admissible in individual tria

ls. See United States v. Darden , 70 F.3d 1507, 1527 (8th Cir. 1995), cert. denied , 116 S.Ct. 1449 (1996). The other conspirators were alsoDierling and Younger led chases more than once in t heir vehicles, and Holt was 6 a passenger during Dierling’s first chase. -16- closely inv olved in events described in the challenged evidence. All of them committe d some act of violence against Craig related to the drug debt he owe d Dierling, and a joint trial is p ermissible even if all conspirators did not participate in a killing where violence is a modus oper andi of a conspiracy and the action was committed in furtherance of th e conspiracy. See Delpit , 94 F.3d at 1143. All conspi rators were involved in flights from law enforcement except Perkins, and it cannot be said that the chase evide nce prevented the jury 6 from making an individual determination of whether a particular defendant participated i n the conspiracy. All took part in drug-related activities on Dierling’s property, and it would have been foreseeable that Dierling might attempt to prevent detection of evidence there

. All carri ed firearms during the conspiracy, and the court instructed the jury to consider the shooting of deputy Clark only against Dierling and to make individual determinations of guilt or innocence as to each defendant. The evidence was not so complicate d that the jury would have been u nable to make individual determinations about the guilt or innocence of eac h defendant. United States v. Willis , 940 F.2d 1136, 1138 (8th Cir. 1991). A joint trial was
necessa ry to give the jurors a perspective on all the evidence. Delpit , 94 F.3d at 114 3 (quoting Darden 70 F.3d at 1528). The court did not err in denying the motions to sever.

VI.
Younger an d Perkins argue they are entitled to a new trial because of th e government’s failure to turn over Brady material. After his conviction Younger moved for
a new trial based on newly discovered evidence. He claimed the government should have given him information it had about Judy Dierling, Brian’s wife at the timeDierling claims to ha ve discovered other new evidence during the pendency of 7 this appeal and moved for a remand for it to be considered by the district court. The other appellants have joined in the motion. Appellants claim this evidence shows that Craig was killed on a different date from Nickell’s account and that there was an additional investigation into the killing. They rely on two search warrant affidavits. One indicates that Craig was reporte d missing on May 25, 1995, several weeks before his alleged murder on June 9, 1995. The other s tates that three of Craig’s acquaintances were among the last to see hi m alive, that people were splitting up Craig’s things because they thought he was dead, and that the police had received tips to search a certain pond for Craig’s remains. This affidavita lso reports that one of the individuals said that “Danny Craig wouldn't b e coming back, that Super Bee, Brian Dierling had got him.” Appellants claim thi s information should have been disclosed under Brady

. Appel lants have not made a sufficient showing to require a remand, and thei r motion is denied. At the time of trial appellants had a police report stating that Danny Craig h ad been last seen on May 23, 1995, two days before the Schuyler Count y affidavit says Craig was reported missing. The government points out that appellants had been aware that there were local investigations into Craig’s slaying and showed it during their cross examination of Bobby Collis. The allegedly new evidence als o would be of questionable value to the defense. Dierling has filed several pro se briefs discussing other information that h as come to his atten tion, a self-styled “motion submitting facts,” and a request that he b e furnished with his own copy of the trial tr anscript at government expense. It is not our practi ce to consider pro se briefs filed by parties represented by counsel, Howard v

. Caspari , 99 F.3d 895, 898 (8th Cir. 1996), cert. denied , 117 S.Ct. 1831 (1997), an d based on our revi ew of his submissions, there is no reason to depart from the practice in this instance, and his counsel has cited the transcript extensively. -17- of the conspiracy, and about a DEA interview with Danny Collis, the nephew of Bobb y Collis. The district court denied the motion after a hearing.

7-18-

The government violates a defendant’s right to due process when it fails to disclose to the de fense favorable material evidence in its possession. Brady v. Maryland , 373 U.S. 83 (1963). Evidence is material w hen there is a reasonable probability that the result of the trial would have been different had the government disclosed the information. Kyles v

. Whit ely , 115 S.Ct. 1555, 1566 (1995). A “reasonable probability” of a different result i s shown whe n nondisclosure “undermines the confidence in the outcome of the trial.” Id

. (quoting United States v. Bagley , 473 U.S. 667, 678 (1985)).
Appellants rely on an affidavit of Judy Dierling’s attorney in which he states that he heard Judy tel l a DEA agent over the phone that she had no knowledge of a methamphetamine laboratory on the Dierling property or Craig’s having been killed there. They say the government had a duty to disclos e this information under Brady , as well as the fact that it had been able to locate Judy and place her under subpoena. They argue that they would then h ave called Judy to testify and that her testimony would have impeache d Ste phanie Nickell who had reported that Judy was also in the house the night Craig wa s killed.
A variety of witnesses at trial tes tified to the extent and nature of the conspiracy, and evidence provided by law enforcement of drug dealing and seized drugs, money, an d weapons was introduced. Appellants also conducted a thorough cross examination o f Nickell, questioning her about prior inco nsistent statements, lies told to the police, and drug
use. J udy Dierling was originally charged in state court with the murder of Danny Crai g along with Brian Dierling and Younger, but the charges against her had been dismissed. Her stat ement to the agent was obviously in her interest since it was exculpatory to her

. Consideri ng the nature of Judy’s possible testimony, the evidence tending to corroborat e Nickell’s story, and especially the fact that the government’s case against appellants did not depend on Nickell’s testimony, it is not reasonably probable that Judy’s testimony woul d have altered the outcome of the trial. TheWe have reviewed the tape of the interview between Burns and Collis. During 8 the interview Collis responded affirmatively to a series of leading questions from the investigator, but he did not make any statements of his own about the killing and did not say anything about having reported such information to the government. -19- informationwas thus not material. Bagley , 473 U.S. at 682; United States v. Risken , 788 F.2d 1361, 1375 (8th Cir. 1986).
Appellants were aware that Judy Dierling had lived on Dierling’s property, that she hadbeen initially charged with the murder of Craig, that she had pled not guilty to th e charge, and that those charges had been dismissed. The evidence they say the government should have d isclosed adds little, if anything, to what they already knew. They did no t inform the government they were looking for Judy Dierling or request its assistance i n locating her or in securing her testimony. There is no indication that the government sought to hi de her or make her unavailable or that it suppressed material information. See United States v. Cheatham , 899 F.2d 747, 753 (8th Cir. 1990); United States v. Ruggiero , 472 F.2d. 599 (2d Cir. 1973). In these circumstances neither Bradynor the compulsory process clause of the sixth amendment were violated.
Appel lants also claim they were entitled to statements Danny Collis made to DE A agents during a pretrial interview because their investigator Wesley Burns allegedl y discovered that Co llis had given exculpatory information. At a hearing on the motion for a new trial, Burns testif

ied that Collis had claimed to him that he had “first hand knowledge” about what happened to Danny Craig and that Younger and Dierling had nothing to do with it. The statements Collis made to Burns do not indicate that he gave this information to the government, however, and the district court did not so find. Mere speculation that th e 8 governmenthad exculpatory evidence is an insufficient basis for a Brady claim, Unite d States v. Van Brocklin , 115 F.3 d 587, 594 (8th Cir. 1997), and the government has no duty to disclose information it does not have. Reed v . United States , 106 F.3d 231, 235 (8th Cir. 1997).-20-

The district court did not err in denying the motion for a new trial on the ground that favorable material information was not disclosed by the government.

VII.

All appellants claim that they are entitled to resentencing. They say the court use d unreliab le testimony to determine that the conspiracy involved 10 to 30 kilograms o f methamphetamine. Younger also argues that it was error to include in that amount a container of methamphetamine which he claims was unmarketable. In addition, Dierlin g challenges the enhancements he received for being a leader of the conspiracy and fo r obstruction of just

ice. The amount of drugs must be established by a preponderance of the evidence, United States v. Rose , 8 F.3d 7, 9 (8th Cir. 1993), and we review sentencin g findings for clear error. United States v. McMurray , 34 F.3d 1405, 1415 (8th Cir. 1994).

A.
Appellants object to the court’s reliance on testimony by three immunized witnesses who were admitted drug addicts. The sentencing guidelines provide that “[w]here there is no drug seizure or the amount seized does not ref lect the scale of the offense, the court shall appro ximate the quantity of the controlled substance.” USSG § 2D1.1, comment. (n.12)

. Insuch situations it is proper to rely on testimony of witnesses to establish drug amounts. See United States v. Marks , 38 F.3d 1009, 1014 (8th Cir. 1994). The sentencing court’ s assessment o f the credibility of witnesses is nearly unreviewable. United States v. Karam , 37 F.3d 128 0, 1286 (8th Cir. 1994). Appellants’ expert pharmacologist testified at th e sentencing hearing that users can suf fer hallucinations which could distort their estimates of drug qu antities, and they rely on United States v. Simmons , 964 F.2d 763, 776 (8th Cir

. 1992), whe re the key witness lied under oath and also admitted that her drug use ha d impaired her memory. The circumstances here are different from Simmons . Two of th e government witnessesAlthough Younger argued at his sentencing he aring that the jar contained waste 9 wate r left over from the manufacture of methamphetamine, he does not make tha t argument on appeal. Subsequent to Jennings , the United States Sentencin g -21- adm ittedthat while under the influence of methamphetamine they had experience d paranoia or “paranoia-like hallucinations,” but there was n o demonstrated untruthfulness and nothing in the record to i ndicate that they had suffered memory loss or hallucinated about the amount of drugs they saw. Appellants also argue that the witnesses wer e unreliabl e because the prices they reported did not always fit the amounts o f methamphetamine. One witness reported that Holt and Perkins bought five poun d quantit ies of methamphetamine from Dierling and Younger for $5,000, but tria l testimony es tablished that five pounds had a street value of $160,000. There wa s testimony, however, that appellants h ad gone to Dierling’s farm on several occasions to deliver mon ey for previously received drugs. The court could have found that partia l payments were made or that Holt and Perkins paid reduced rates because of thei r position in the conspiracy. It was up to the court to evaluate the testimony, and it s findings were not clearly erroneous.

B.
Younger argues that the court erred by partially ba sing his sentence on 300 grams of a substance containing methamphetamin e that was found in a jar seized during a stop of his vehicle and on other seized substances containing methamphetamine. Younge r conten ds that these substances were only 0.5% methamphetamine and were therefor e undistributable or unmarketable under Uni ted States v. Jennings , 945 F.2d 129 (6th Cir. 1991), amended on other grounds , 966 F.2d 1 84 (6th Cir. 1992), cert. denied , 117 S.Ct. 411 (1996), and United States v. Jackson , 115 F.3d 843 (11th Cir. 1997). Th e methamphetamine in Jennings lik ely contained uningestible, poisonous byproducts, and Jackso n held that only “usable” or “marketable” amounts of controlled substance s shouldbe counted for sentencing. 115 F.3d at 846-48. Appellants have not presented evidence that the contents of the jar or any of the methamphetamine 9Commissionamended the commentary to the guidelines to specify that “waste water

from an illicit laboratory used to manufacture a controlled substance” does not count towards sentencing. USSG § 2D1.1, comment. (n.1). It is therefore not necessary to consider whether the marketability test should 10 apply in this circuit. -22- introduced at trial

was tainted or unmarketable, however. The guidelines specify that 10 the “weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” USSG § 2D1.1 (c). (n.*) (Drug Quantity Table). Since 0 .5% is a detectable amount, the guideli nes require that the drug calculations include the methamphetamine Younge r challenges. See United States v. Smith , 49 F.3d 362, 367 (8th Cir.) (plain meaning of the guidelines is controlling), cert. denied , 514 U.S. 1131 (1995).
Dierling argues in addition that the court erred in including in its count amounts that could have been manufactured from a recipe that he gave to Bobby Collis while they were in jail. Dierling contends the recipe would not have yi elded methamphetamine, but the government presented evidence to the contrary and it was for the trial court t o resolve any co nflict. See, e.g. , United States v. Carter , 997 F.2d 459, 460-61 (8th Cir. 1993).

C.

Di erling also challenges his sentence enhancements: four levels because he was a leader or organizer of an enterprise involving five or more particip ants, USSG § 3B1.1, and anot her four levels for obstruction of justice for burning his property and for hi s fl ight from law enforcement. USSG § 3C1.1. The trial court examines all relevan t conduct in the case to determine an individual’s role in the charged offense,-23-

UntiedStates v. Flores , 959 F.2d 83, 86 (8th Cir. 1992), and its findings are reviewed under the clearly erroneou s standard. United States v. Skorniak , 59 F.3d 750, 757 (8th Cir.), cert. denied , 116 S.Ct. 487 (1995).
There was ample evi dence to show that Dierling was a leader and organizer of a meth amphetamine manufacturing and distribution conspiracy involving five or mor e people. USSG § 3B1.1(a). Dierling’s partici pation in the conspiracy conforms in many
re spects to the types of activity described in the commentary to the relevant guidelin e section. USSG § 3B1.1, comment. (n.4). Dierling exercised decision making authority for the conspiracy as a director of the distribution scheme. See United States v. Fuller , 942 F.2d 454, 458 (8th Cir. 1991). Evidence showed that it was Dierling’s idea to kill Danny Craig, that he put out a contract on his life, and that he induced others to bea t Craig. Witnesses testified that Holt, Perkins, and Craig were dealing drugs unde r Dierling ’s direction. Dierling also gave a firearm to Michelle Crawford while she was transacting business on behalf of the conspiracy because he believed it was necessary forher pro tection. Dierling recruited members of the conspiracy and supervised th e procureme nt of drug manufacturing materials. He offered to teach Candy True how to produce methamphet amine. He also solicited the assistance of Danny Craig to pick up drug ma nufacturing materials from his barn. Dierling brought others together t o manufacture the drug and set up a manufacturing laborator y on his property. See United States v. Kee ne , 915 F.2d 1164, 1170 (8th Cir. 1990). He attempted to enlist Bobb y Collis in the manufacture of methamphet amine in order to raise money to get out of jail. He called C andy True from jail and asked her to procure materials because he planned to make the drug to raise money upon his release. See United States v. Wagner , 88 4 F.2d 1090, 1098 (8th Cir. 1989). There is no question t hat he was a leader or organizer.

Ther e was also sufficient evidence on which the court could find that Dierlin g “willfully obstructed or impeded, or at tempted to obstruct or impede, the administration of justice” when he burned his house and barn and fled from police on two occasions.-24-

USSG § 3C1.1. Enhancement is appropriate where “misconduct occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probabl y underway.” United State s v. Oppedahl , 998 F.2d 584, 586 (8th Cir. 1993). There was evidence th at Dierling set fire to his property at a time he knew he was the target of an investigation into the production and distribution of methamphetamine. He knew tha t the police had searched his property only days befo re the fire. Dierling told government witness Michelle Crawford around the time of the fire that they had to go to Iowa to get methamphe tamine because “things were hot around there” which she understood t o mean “the cops were on him.” Dierling also told Bobby Collis while t he two were in jail that he set fire to his property to destroy the remnants of a methamphetamine laboratory. There was enough evidence to show that Dierling “ consciously act[ed] with the purpose of obstructing justice.” United States v. Watts , 940 F.2d 332, 332-33 (8th Cir. 1991 ) (quoting United States v. Stroud , 893 F.2d 504, 507 (2d Cir. 1990).

Die rling argues that the court improperly assessed a two level enhancemen t be cause of his flight and shooting of deputy Clark. He says that Clark was attempting to arrest h im on warrants for the violation of a protective order and so his flight should not be attribute d to any awareness of an investigation of his drug activities. There was evidence, however, that he knew he w as suspected of drug dealing and that he intended to evade capt ure and protect the illegal operation. This was sufficient to support th e district court’s obstruction ruling.

D.
In summary, the trial cour

t made detailed findings at the sentencing hearing as to the credibility of the witne sses, addressed thoroughly and individually the objections of each appellant to the Presentence Report, and otherwise fu lly complied with the relevant requi rements of Fed R. Crim. P. 32. There was evidence to support the findings, an d there is no reason to overturn them or to require resentencing.-25- VIII.
Appellants were involved in a large methamphetamine conspiracy, and th e conspira tors acted ruthlessly at times to protect its operation. There was a wealth o f evide nce to support the jury verdicts and the sentencing findings. Appellants have not shown reversible error at their joint trial or that they are entitled to a new trial, and for the reasons already discussed we affirm the judgments.
A true copy.

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