UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-10185

UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

RAY CHARLES FIELDS, a/k/a "RC", "Big Daddy", TIMOTHY

FIELDS, TED ROSS, DARRON FIELDS, CLYDE MCDONALD, a/k/a "Polo",

and TERRY RICHARDSON, a/k/a "Freeze",

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Texas,

January 9, 1996

Before REYNALDO G. GARZA, JOLLY & DUHÉ, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

I.

BACKGROUND

Appellants were convicted of multiple offenses arising out a

conspiracy that operated a crack cocaine distribution ring in

Dallas, Texas. According to the evidence most favorable to the

government, the ring, known as the Fields organization, was headed2

by Ray Charles Fields ("Ray Fields"). His Brothers, Timothy and

Darron Fields, helped him run the operation. The Fields

organization w ould buy large amounts of powder cocaine, turn it

into crack cocaine, distribute it to salespersons at various sites,

and then pick up the money from the salespersons.

Defend ant Ted Ross ("Ross") ran two of the Fields

organization's crack cocaine distribution sites. One was located

on Rupert Street and the other at a car wash. Clyde McDonald ran

drugs to various locations. Terry Richardson ("Richardson")

delivered money from the distribution sites to a game room, where

the money was collected and employees were paid.

The Fields organization distributed more than 1,000 kilograms

of crack cocaine before it was broken up by law enforcement. The

defendants we re then tried and convicted of various offenses

arising out of their involvement in Fields organization. They now

appeal from those convictions on various grounds.

II.

THE DEFENDANTS' BATSON CLAIM

The prosecuti o n exercised four of its preemptory strikes

against mi n ority venirepersons. Three were exercised against

blacks, and the fourth against a hispanic. The defendants concede

that the prosecution gave race-neutral reasons for excusing three

of the minority venirepersons. But all the defendants, except for

Richardso n, claim that the prosecution exercised its preemptory

strike against the fourth, a black female, on the basis of race.1 Such challenges are known as Batson challenges. S ee Batson

v. Kentucky, 476 U.S. 79 (1986).

2 Hernandez v. New York, 111 S. Ct. 1859 (1991).

3 Id.

4 Id.

5 Id.

6 Id.

3 The prosecution contends that it had race-neutral reasons for

striking that venireperson. Specifically, she was young, which

made her more likely to identify with the defendants, she avoided

eye contact with the prosecutor, and she looked at the defendants

in a flirtatious manner.

The Supreme Court ha s set up a three-step process for

examining objections to preemptory c hallenges on the grounds of

race. 1 First, a defendant must make a prima facie showing that the

prosecutor has exercised a preemptory challenge on the basis of

race. 2 Second, if the defendant makes such a prima facie showing,

the burden shifts to the prosecut or to articulate a race-neutral

reason for excusing the juror in question. 3 Third, the trial court

must determine whether the defendant has carried his burden of

proving purposeful discrimination. 4

The Supreme Court stated that a race-neutral explanation is an

explanation based upon something other than the race of the juror. 5

Such an inquiry should focus upon the facial validity of the

prosecutor's ex planation. 6 Unless a discriminatory intent is

inherent in the prosecutor's explanation, the reason given by the7 Id.

8 United States v. Clemons, 941 U.S. 321, 325 (5th Cir. 1991).

9 United States v. Seals, 987 F.2d 1102, 1109 (5th Cir.), cert.

denied

, 114 S. Ct. 115 (1993); Polk v. Dixie Ins. Co., 972 F.2d 83,

85 (5th Cir. 1992), cert. denied , 113 S. Ct. 982 (1993).

1 0 Polk

, 97 2 F.2d at 86 (eye contact); United States v.

Terrazas-Carrasco, 861 F.2d 93, 9 4-95 (5th Cir. 1988)(age, eye

contact and body language); Clemons , 941 F.2d at 325 (age);

4 prosecution will be deemed race-neutral. 7 Further, this circuit

has recognized that "a prosec utor's explanation for a peremptory

strike need not rise to the level of a challenge for cause; it

merely must contain a clear and reasonably specific articulation of

legitimat e reasons for change." 8 We review the district court's

determination that the prosecution gave a race-neutral explanation

for clear error. 9

Two of the reasons given by the prosecution, the juror's

avoidance of eye contact and the juror's age, have been upheld as

valid race-neutral reasons by this circuit. 10 The third reason,

looking flirtatiously at the defe ndants, has not previously been

passed upon by this circuit. However, we find it to be equally

race-neutral. Therefore, we hold that the district court did not

err in finding that the prosecution gave race-neutral explanations

for excluding the juror.

III.

REFERRAL TO COMMUNITY EXPECTATIONS DURING CLOSING ARGUMENT

All of the defendants, except Richardson, argue that the

following portion of the prosecution's closing argument was5

improper:

Now, when you convict these defendants, and I think

you will because the evidence supports it, all of them,

you are not going to stop that problem out ther e. I

don't expect that and you don't expect that. But you

know who is going to be glad about that? The neighbors,

the high school down the street from Gabr iel Gardens

Apartments, the business around the corner —

[Defense Counsel] Your honor, I object to reference to

community expectations on a particular verdict.

[The Court] Overrule the objection.

[The Prosecutor] The businesses down the street from

other Oak Cliff areas, the church down the block from the

Metropolitan Apartments. Those are the people that are

going to be happy, they will be satisfied, they will know

that what's going on down here is the right thing.

It' s a neighborhood problem. If we take

neighborhoods back by putting these people in j ail, we

can eventually work our way to solving this problem. But

it's got to start right here.

The defendants claim that this argument was an impermissible appeal

to the passion and prejudice of the jury. They claim that the

prosecution urged the jury to lay the blame for the drug problem on

the feet of t he defendants, and to end a societal problem by

convicting the defendants. They further argue that the argument

pressured the jurors to convict by suggesting that the communities

most affected by the defendants' acti ons were expecting a guilty

verdict.

In reviewing a claim of prosecutorial misconduct, this Court

first determines whether the prosecutor's remarks were improper

and, second, whether they prejudicially affected the substantive1 1 United States v. Lokey, 945 F.2d 825 (5th Cir. 1991); United

States v. Carter, 953 F.2d 1449 (5th Cir.), cert. denied

, 504 U.S.

990 (1992).

12 Id.

1 3 United States v. Palmer, 37 F.2d 1080, 1085 (5th Cir. 1994),

cert. denied , 115 S. Ct. 1804 (1995).

14 Lokey , 945 F.2d at 839.

1 5 2 F.3d 1551 (11th Cir. 1993), cert. denied , 114 S. Ct. 2751

(1994).

16 The prosecutor made the following improper argument:

I want to say a few words about—and I know you've heard

about it and I've heard about it—war on drugs, war on

drugs. You've heard it. You hear it all the time. And

this is a war. This is just—this is just another battle

in that war. It's a battle to save folks from being

6 rights of the defendant. 11 Consideration is given to 1) the

m agnitude of the prejudicial effect of the statements; 2) the

efficacy of any cautionary instruction given; and 3) the strength

of the evidence of the defendant's guilt. 1 2 The magnitude of the

prejudicial effect is tested by looking at the prosecutor's remarks

in the context of the trial in which they were made and attempting

to elucidate their intended effec t. 13 At the same time, the

district court's on-the-scene assessment of the prejudicial effect,

if any, is entitled to considerable weight. 14

The defendants cite no Fifth Circuit cases in which this court

found a similar argument to be impermissible, but they do cite

several cases from other circuits. First, they cite U nited States

v. Beasley

, 15 a case in which the Elevent h Circuit held that the

prosecutor's references to the "war on drugs" and to the jury as

participants in that war were improper. 16 The court held that thoseenslave[d] by crack cocaine. That's what, that's what this

battle's about. Now, I've got a place in that war. The judge has

got a place. Those defendants over there all have a place in it.

. . .

And for profiteers like [the defendant] to do that to—not

just his—not just Esau Street. It's not just Esau

Street. It's all over the country. And people, there's

another John Christopher out there somewhere. . . .

17 937 F.2d 1146 (6th Cir. 1991).

1 8 The offensive part of the prose c utor's argument was as

follows:

I'm asking you to tell her and all the other drug dealers

like her that we don't want that stuff in Northern

Kentucky, and that anyone who bri ngs that stuff in

Northern Kentucky. . . .

19 968 F.2d 768 (8th Cir. 1992).

7 comments were calculated to inflame the jury. However, the

Eleventh Circuit refused to r everse the conviction, finding that

the comments were not prejudicial to a substantial right of the

defendants.

The defendants next cite United States v. Solivan

, 17 a case

involving a prosecutor's argument that the jury should tell the

defendant and other drug dealers like her that the people of that

community did not want drugs in their area. 18 Those comments

suggested that, because of the defendant's part icipation in the

drug trade in northern Kentucky, the drug problem facing the

community would continue if the jury did not convict her. The

Sixth Circuit reversed, holding that it was improper to urge jurors

to convict defendants in order to strike a blow against the drug

problem faced by society or within their communities.

The defendants also cite Unites States v. Johnson

, 19 a case in20 The offensive argument went as follows:

[The defendant's attorney] says your decision to uphold

the law is very important to his client. Your decision

to uphold the law is very important to society. You're

the people that stand as a bulwark against the

continuation of what Mr. Johnson is doing on the street,

putting poison on the street.

2 1 741 F.2d 1434 (D.C. Cir. 1984), cert. denied , 470 U.S. 1085

(1985).

2 2 United States v. Ruiz, 987 F.2d 243, 249 (5th Cir.), c ert.

denied , 114 S. Ct. 163 (1993).

23 Id.

8 which the Eighth Circuit held that a prosecutorial argume nt that

encumbered the defendant with responsibility for the larger

societal problem of drugs in addition to his own misdeeds was

improper and inflammato ry. 20 Finally, they cite U nited States v.

M onaghan

, 21 a case in which the D.C. Circuit stated that "[a]

prosecutor may not convict a criminal defendant in order to protect

community values, prese rve civil order, or deter future

lawbreaking."

This circuit has held that appeals to the jury to act as the

conscience of the community are permissible, so long as they are

not intended to inflame. 22 This Court upheld as proper the

following prosecutor's argument: "You are the arbiters or truth.

You are the ones who stand between the citizens of this country and

an injustice, crimes that were committed against the nation in

which we live." 23 That argument was held to be a mere plea to the

jury to do its duty, not an attempt to inflam e the jurors.

Similarly, this circuit upheld the following argument as proper:24 United States v. Brown, 887 F.2d 537, 542 (5th Cir. 1989).

9 "Drugs are a terrible thing and they are ruining the society. . .

. And it's up to you to do something about it and that is returning

a verdict of guilty on these charges." 24

The cases cited by defendants are distinguishabl e. In this

case, the prosecution's argument focused on the neighborhood drug

problem caused by Ray Fields and his co-defendants. It did not ask

the jury to hold the defendants responsible for the national drug

problem, but merely to hold the defendants responsible for the drug

problem in the neighborhoods in which they sold drugs. Because the

prosecution was merely reminding the jurors of the adverse affect

that the defendants' activities had upon the particular community

in which they sold crack cocaine, rather than encouraging the

jurors to convict the defendants because the community expected a

conviction, we hold that it was proper.

Further, even if the prosec utor's argument was improper, it

would not cast serious doubt upon the verdict. The evidence of the

defendants' guilt was overwhelming, so any error would be harmless.

III.

DOUBLE JEOPARDY ISSUES

A.

THE PRIOR CIVIL FORFEITURES

The government seized approximately $500,000 from the

defendants in civil forfeiture actions. Defendants Ray and Timothy

Fields, Richardson and Ross moved to dismiss the indictments2 5 United States v. Whittie, 25 F.3d 250, 255 (5th Cir. 1994).

26 United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).

2 7 490 U.S. 435 (19 89). See also United States v. Perez, No.

94-60788, 1995 WL 689385 (5th Cir. Nov. 21, 1995).

28 113 S. Ct. 2801, 2911-12 (1993).

2 9 United States v . Tilley, 18 F.3d 295 (5th Cir.), c ert.

denied , 115 S. Ct. 574 (1994).

10 against them on the ground that these forfeitures constituted

punishment, and that the instant prosecution therefore violates the

Double Jeopardy Clause. We review this double jeopardy claim de

novo, 25 although the district court's factual findings are accepted

unless clearly erroneous. 26

In United St ates v. Halper

, 27 the Supreme Court held that a

defendant punished in a criminal prosecution cannot be subjected to

an additional civil sanction that can fairly be chara cterized as

punishment without violating the Double Jeopardy Clause.

Conversely, the logic of Halper indicates that a defendant that has

been subjected to punishment in the form of a civil forfeiture

canno t be subjected to a subsequent criminal prosecution arising

out of the same offense. In A ustin v. United States

, 28 the Court

held that forfeitures of instrumentalities used in the drug trade,

which occur under 21 U.S.C. §§ 881(a)(4) & (a)(7), are p er se

punishments. However, this Circuit has since held that the

forfeiture of proceeds from illegal d rug sales pursuant to 21

U.S.C. § 881(a)(6) does not constitute punishment. 29 Thus, a

prosecution aft er such forfeitures does not violate the double

jeopardy clause.30 United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).

31 Whittie , 25 F.3d at 255.

11 The district court found that the civil forfeitures in

question involved proceeds fr om illegal drug sales. Because the

record does not indicate under which subsection of 21 U.S.C. § 881

the forfeitures were conducted, the d istrict court was forced to

determine from the affidavit in support of the forfeitures and from

the representations of the parties whether the forfeited property

consisted of proceeds or instrumentalities. We review this factual

finding for c lear error. 3 0 Our review convinces us that the

district court did not err in determining that the forfeited assets

consisted of drug proceeds. The affidavit filed in support of the

forfeitures alleges t hat the assets seized were drug proceeds.

Further, at the hearing on the motion to dismiss defe ndants'

counsel did not challenge the prosecutor's assertion that the

forfeited assets were proceeds. Thus, we accept the district

court's findings, and hold that the prior forfeitures do not bar

the instant prosecution.

B.

THE CONTINUING CRIMINAL ENTERPRISE CONVICTION

Ray Fields argues that his conviction for conspiracy is barred

by double jeopardy because of his conviction for a continuing

criminal enterprise. We review this double jeopardy claim de

novo. 31

Count one of the indictment alleged that Ray Fields engaged in3 2 United States v. Boldin, 772 F.2d 719 (11th Cir. 1985), cert.

denied , 475 U.S. 1986).

3 3 See United States v. Michel, 588 F.2d 986, 1001 (5th Cir.),

cert. denied , 444 U.S. 825 (1979).

12 a continuing criminal enterprise ("C.C.E.") in violation of 21

U.S.C. § 848(a). It alleged that he violated 21 U.S.C. §§

841(a)(1), 843(b) and 846 as part of a continuing series of crimes

undertaken in concert with at least five other persons. Count two

of the indictment charged him with the offense of conspiracy. The

evidence at trial showed that the C.C.E. alleged in count one was

the same enterprise as the conspiracy alleged in count two. Under

these circumstances, the conspiracy offense is a less er included

offense of the C.C.E. offense, and the Double Jeopardy Clause

prohibits convictions for both offenses. 32 Therefore, we vacate Ray

Fields' conviction and sentence under count two.

Although we vacate Ray Fields' conviction on count two, we see

no reason to remand this case for resentencing. Where it is clear

that the conviction for a lesser included offense did not lead the

trial court to impose a harsher sentence on the greater offense

than it would have in the absence of the lesser conviction, there

i s no need to remand for resentencing. 3 3 Here, the conspiracy

conviction clearly did not affect the district court's sentencing

on the other offenses. The district court sentenced Ross and

Timothy Fields to life imprisonment for their conspiracy offenses.

Clearly, it would have sentenced Ray Fields, who was the head of

the conspiracy for which Ross and Tim Fields were sentenced, to

life in prison fo r the C.C.E. offense even in the absence of the34 Jackson v. Virginia, 443 U.S. 307 (1974).

3 5 United States v. Elam, 678 F.2d 1234, 1245 (5th Cir. 1982).

36 United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir.

1987).

13 conspiracy conviction.

IV.

SUFFICIENCY OF THE EVIDENCE

A.

ROSS & McDONALD'S CONVICTIONS FOR CONSPIRACY

Ross and McDonald claim that the evidence is insufficient to

prove beyo nd a reasonable doubt that one conspiracy—rather than

multiple conspiracies—existed, and that they were members of that

conspiracy. In reviewing their insufficient evidence claim, we

will affirm if, "after viewing the evidence in the light most

favorable to the prosecution, [we] find that any reasonable trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt." 34

Whether a single conspiracy or multiple conspiracies existed

is a question of fact for the jury to determine. 35 In counting the

number of conspiracies, the p rincipal factors are: 1) the

existence of a common goal; 2) the nature of the scheme; and 3)

overlapping of participants in the various dealings. 36

As to the first factor, a common goal, a single conspiracy

exists where the evidence demonstrates that all of the alleged coconspirators directed their efforts toward the accomplishment of a37 Id.

3 8 United States v. Morris, 46 F.3d 410, 415 (5th Cir.), cert.

denied , 115 S. Ct. 2595 (1995).

39 Richerson , 833 F.2d at 1154.

14 single goal. 3 7 This factor is satisfied by the common goal of

d eriving personal gain from the illicit buying and selling of

c ocaine. 38 Although Ross contends that he did not have a common

goal with the Fields organization, neither Ross nor McDonald argue

that they did not share the Fields organization's goal of making

money through buy ing and selling crack cocaine. Additionally,

there is evidence that both McDonald and Ross were involved in the

crack cocaine business, which is sufficient to establish this

common goal.

The second factor, the na ture of the scheme, is also

satisfied. Where the activities of one aspect of the scheme are

necessary or advantageous to the success of another aspect of the

scheme or the overall success of the venture—that is, where there

are several parts inherent in a larger common plan—the existence of

a single conspirac y will be inferred. 3 9 The evidence showed that

the activities of one aspect of the scheme were necessary and

advantageous to the other aspects of the scheme or to the overall

success of the venture, and that there were several parts inherent

in a larger common plan. Specifically, the evidence showed that

Ray and Timothy Fields acquired powder cocaine from various sources

and converted it into crack cocaine. Then, through runners the

crack cocaine was delivered to distribution "spots" and the money15

was returned to the Fields brothers. Ray Fields hired and fired

personnel and supervised the overall operation. The supply system

was necessary to Ross, who was in charge of the "spot" at the car

wash on Second Street. McDonald, as one of the runners delivering

drugs and money for Ray Fields, also played a necessary role in the

venture. Thus, the nature of the scheme showed a single

conspiracy.

The "overlapping of participants" factor also indicates that

a single conspiracy existed. There is circumstantial evidence that

Ross worked for Ray Fields, the pivotal figure in the conspiracy.

The evidence also showed that Ray Fields also worked with other

members of the conspiracy, and t hat McDonald delivered drugs to

members of the conspiracy. All in all, the evidence is sufficient

to support the jury's finding of a single conspiracy with

overlapping participants, which revolved around Ray Fields.

B.

ROSS' CONVICTION FOR MONEY LAUNDERING

Ross also argues that the evidence is insufficient to support

his conviction for money laundering in violation of 18 U.S.C. §

1956(a)(1)(B)(i). Ross was convicted of money laundering based on

his purchase of a pickup truck with $20,000 in drug proceeds in a

transaction that was designed to conceal the nature of his unlawful

activity. To convict a defendant under 18 U.S.C. §

1956(a)(1)(B)(i), the government must show that the defendant: (1)

conducted a financial transaction; (2) which he knew involved the4 0 The parties disput e whether the gun was in or next to the

safe. However, Government's Exhibit 16.4 clearly shows that the

shotgun was too long to fit in the safe. Therefore, it must have

been next to the safe.

16 proceeds of an unlawful activity; (3) with the intent to conceal or

disguise the nature, location, source, ownership or control of the

proceeds of the unlawful activity.

Our review of the evidence leaves us satisfied that the

evidence is sufficient to affirm Ross' money laundering conviction.

Ross does not dispute the first element; he admits that he

purchased a truck, which constituted a financial transaction. As

for the second element, there is circumstantial evidence that

supports the jury's finding that he knowingly purchased the truck

with drug money. Specifically, Ross paid for the truck with a

paper sack full of cash, and the payment took place at the game

room, a location where cash from crack cocaine sales was brought in

and turned over to Ross. Finally, Ross' registration of the truck

in his brother's name is sufficient to show an intent to conceal.

C.

ROSS' FELON IN POSSESSION OF A FIREARM CONVICTION

Ross contends that the evidence was insufficient to support

his conviction for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)( 1). Two firearms were found

during a search of a house located at 1347 Glencliff Circle.

During that search, officers found a handgun underneath a mattress

and a shotgun leaning against a wall next to a safe. 40 To convict4 1 United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993),

cert. denied , 114 S. Ct. 1310 (1994).

42 Id.

17 Ross under Section 922(g)(1), the government must prove: (1) that

Ross was a convicted felon; ( 2) who possessed a firearm; and (3)

that the firearm was in or affected commerce. While Ross admits to

being a felon, he contends that the government failed to prove that

he possessed a firearm, or that the firearm was in interstate

commerce. Our review of the evidence, however, leads us to

conclude that the evidence is sufficient to affirm the conviction.

The expert testimony of Agent Frost established the interstate

commerce element. Frost testified that the firearms were

manufactured outside of Texas and traveled in interstate commerce

to reach Texas. This testimony is sufficient to satisfy the

commerce element of Section 922(g)(1).

There is also suff icient evidence to support the jury's

finding that Ross possessed a firearm. Although the evidence seems

insufficient to show that Ross possessed the handgun, it is

sufficient to show th at he constructively possessed the shotgun.

Constructive possession is defined as "ownership, dominion or

control over the [shotgun] itself or dominion or control over the

premises in which the [shotgun] is concealed." 41 However, where two

or more persons jointly occupy the place where a firearm is found,

mere control or dominion of that place is, by itself, insufficient

to establish constructive possession. 42 Evidence showing at least

a plausible inference that the defendant had knowledge of and43 Id.

4 4 Although Ross presented evidence that he did not live at the

home at the time of the search because he was having problems with

his wife, the jury was free to disbelieve such evidence.

18 access to the weapon is necessary to establ ish constructive

possession. 43 Because Ross jointly occupied the house with his

wife, 44 the prosecution must show that R oss had access to and

kno wledge of the weapons. While there does not seem to be any

evidence which shows that Ross had access to or knowledge of the

handgun, the fact that the shotgun was found in plain view, leaning

against a wall, is sufficient to establish that he had knowledge of

and access to the shotgun. Therefore, we affirm his Section

922(g)(1) conviction.

V.

ROSS AND RAY FIELDS' MOTIONS TO SUPPRESS

A.

ROSS' MOTION TO SUPPRESS

Ross moved to suppress evidence that was seized at the time of

his arrest; namely, $28,000 and a pistol. He was arrested during

a routine traffic stop. On February 27, 1991, officer Steve

Oulliber observed Ross driving a red Mustang. Ross, who was

stopped at a traffic light, saw the officer and put on his

seatbelt. The officer then stopped Ross for a seatbelt violation.

The officer then discovered that Ross' driver's license was invalid

because he had not updat ed the address on the license, and that

Ross did not have proof of insurance. The officer then arrested4 5 United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.

1991), cert. denied , 504 U.S. 942 (1992).

4 6 United States v. Shabazz, 993 F.2d 431, 435 n. 3 (5 th Cir.

1993); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.

1987)(en banc).

47 Causey , 834 F.2d at 1184.

19 Ross and had the Mustang impounded. He then conducted an inventory

search of the vehicle, and discovered the pistol and the $28,000.

In our review of the district court's denial of the motion to

suppress, the district court's factual findings are accepted unless

clearly erroneous or influenced by an incorrect view of the law,

while questions of law are reviewed de novo. 45 Although he concedes

that inventory searches are valid when conducted pursuant to

standard procedures, Ross contends that the inventory search was an

unlawful pretext search. That is, he claims that the officer

stopped Ross simply to find an excuse to search his car. However,

this circuit has held that pretext searches do not violate the

Fourth Amendment. 46 "[S]o long as the police do no more than they

are objectively authorized and permitted to do, their motives in

doing so are irrelevant and hence not subject to inquiry." 47 Thus,

Ross' pretext search argument is without merit.

Ross also contends that the search was illega l because the

prosecution failed to present evidence that the Dallas Police

De partment had a standard inventory search procedure. However,

Ross did not present this argument before the district court in his

motion to suppress. In fact, during the hearing on the motion to

suppress, his counsel admitted, "If [the police officer] makes a48 R. 25:161.

4 9 United States v. Caverly, 37 F.3d 160, 162 (5th Cir. 1994)(en

banc), cert. denied , 115 S. Ct. 1266 (1995).

50 Officer Oulliber testified that "99 out of 100 times [the

inventory search is] done right on the street." This testimony

implied that the Da llas Police Department had a policy of

conducting inventory searches on impounded cars.

5 1 United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990),

cert. denied , 115 S. Ct. 346 (1994).

20 valid arrest, he has the ability to conduct an inventory search." 48

Thus, our review i s limited to plain error. 4 9 Because the police

officer's testimony implied that the Dallas Police Department had

a policy of conducting inventory searches when it impounded cars, 50

we find no such error.

B.

ROSS' MOTION TO SUPPRESS EVIDENCE OF

STATEMENT MADE WHILE IN POLICE CUSTODY

Ross contends that the district c ourt erred in refusing to

suppress a statement that he made during police custody. He claims

that the statement should have been suppressed because he did not

intelligently waive his right to an attorney before making it. The

district court's determinat ion that Ross' waiver was knowing and

intelligent is a finding of fact, which we review only for clear

error. 51

After Ross was arrested on April 22, 1993, he was taken to a

DEA office. At the DEA office, he was given M irand a w arnings.

After he was gi ven the warnings, IRS agent De Los Santos advised

him why he had been arrested. Ross responded by saying, "I'm21

guilty of whatever you say." He then said that he would not tell

the officers anything about R ay Fields. A few minutes later, he

mentioned that he had spoken to an attorney regarding the matter.

At that point, the officers stopped the interrogation.

Ross claims that his waiver of his right to an attorney was

not knowing and i ntelligent because a person who intelligently

waived his right to counsel would not request counsel a few minutes

later. Ross cites no cases in which a request for counsel made

subsequent to mak ing an incriminating statement was held to

constitute an unknowi ng and unintelligent waiver. We hold that

Ross' waiver was intelligent and knowing. Although Ross' waiver

may have been unwise, assuming that he planned to plead not guilty,

he simply fails to show that he did not u nderstand that he had a

right to counsel. Because there was evidence that Ross understood

his Miranda rights, the district court did not err in finding that

he waived them. Therefore, we affirm the district court's denial

of Ross' motion to suppress.

C.

RAY FIELDS' MOTION TO SUPPRESS

Ray Fields seeks to suppress evidence seized during a search

of a home at 4829 Cedardale. This search was conducted pursuant to

a search warrant. Ray Fields contends that the evidence seized

during that search—weapons and $245,000 in small bill s—should be

excluded because the affi davit upon which the search warrant was

granted did not provide adequate probable cause.5 2 Un ited States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.

1992).

53 Id.

54 Id.

55 Id. at 321.

56 Id.

57 Id.

22 In reviewing the denial of a motion to suppress evidence

obtained pursuant to a warrant, this Court engages in a two-step

review. First, it determines whether the good-faith reliance on a

warrant exception to the exclusionary rule applies. 52 Evidence

obtained by officers in objectively reasonable good-faith reliance

upon a defective search warrant is admissible unless the affidavit

upon which th e warrant was issued is so lacking in indicia of

probable caus e as to render official belief in its existence

entirely unreasonable. 53 Second, if the good-faith reliance

exception does not apply, this Court determines whether probable

cause supported the warrant. 54

The reasonableness of an officer's reliance on a warrant

issued by a magistrate is reviewed de nov o

. 55 When a warrant is

supported by more than a "bare bones" affidavit, officers may rely

in good faith on t he warrant's validity. 5 6 Bare bones affidavits

contain wholly conclusory statements, which lack the facts and

circumstances from which a magistrate can independently determine

probable cause. 57 Ray Fields argues that the affidavit merely

contained conclusory statements, and was thus a bare bo nes23

affidavit. Further, he argues that the officers' reliance on the

affidavit was unreasonable because the affidavit is based on

information provided by confidential informants, and did not

establish the credibility of those informants.

Our review of the affidav it convinces us that, while the

affidavit did contain some conclusory statements, taken as a whole

it established probable cause. It set forth the background and

experience of the affiant in law enforcement. Further, the

credibility of the confidential informants was established by other

information in the affidavit. The information given by the

informants was detailed, including names, address, amounts of money

and the roles of various persons. The confidential informants also

implicate d themselves in illegal drug activities and made

admissions against penal interest. Each informant gave information

to the police independent of the other informants, and each one's

information corroborate the others'. Further, a police

investigation corroborated s ome of the evidence provided by the

informants. Thus, we hold that the affidavit was more than a bare

bones affidavit, and that the officers reasonably relied upon it in

searching the house.

Ray Fields also claims that the affidavit fails to establish

a nexus between the illegal activity and the home that was

searched. Ray Fields claims that all the affidavit stated in this

regard was that, in the affiant's experience in law e nforcement,

criminals keep evidence of crime in their home. The government

notes that the affidavits stated that Ray Fields would stay at the58 F ED

. R. C RIM

. P. 14 provides—

If it appears that a defenda nt or the government is

prejudiced by a joinder of offenses or of defendants in

an indictment or information or by such joinder for trial

togeth er, the court may order an election or separate

trials of the counts, grant a severance of defendants or provide whatever other relief justice requires. . . .

59 Capote-Capote , 946 F.2d at 1104.

24 home when things "got hot for him," that law enforcement

s u rveillance confirmed that the Fields drug organization held

meetings at the home, and that members of the organization called

the home on several occasions. While this does not constitute

conclusive evidence that evidence was in the home, it does seem to

be enough evidence to be reasonably relied up on by the police in

executing a search warrant. Thus, we affirm the district court's

denial of Ray Fields' motion to suppress.

VI.

McDONALD'S MOTION FOR SEVERANCE

McDonald contends that he was entitled to severance under

Federal Rule of Criminal Procedure 14, which allows severance when

a defendant is prejudiced by joinder of offenses or defendants. 5 8

We review the district court's denial of his motion for severance

due to prejudicial joinder for abuse of discretion. 59

McDonald contends that he was entitled to severanc e because

there was a qualitative disparity between the evidence against him

and the evidence against the other defendants. Specifically, the

evidence showed that Ray Fields and Ross had been major players in6 0 United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993).

61 Id.

6 2 Id. ; United States v. Harrelson, 754 F.2d 1153, 1175 (5th

Cir. 1985), cert. denied , 474 U.S. 908 (1985).

6 3 United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990),

cert. denied , 500 U.S. 934 (1991).

25 the drug business for years, while McDonald was only a runner who

recently joined the Fields organization. He also argues that the

evidence against Ray Fields and Ross was so pervasive that it must

have prejudiced him, notwithstanding the instructions given by the

district court.

In conspiracy cases, the general rule is that persons indicted

together should be tried together. 6 0 A defendant can only obtain

a reversal for failure to sever if he can demonstrate "compelling

prejudice against which the trial court was unable to afford

protecti on." 6 1 McDonald has not demonstrated such compelling

p rejudice. This Court has held that neither a disparity in the

amoun t of evidence against each defendant nor a supposition that

the evidence against other defendants "spilled over" and prejudiced

the defendant constitute compelling prejudi ce. 6 2 The fact that

McDonald was only a minimal participant in the Fields organization

likewise does not mandate reversal. 63 Further, the district court

seems to have remedied any prejudicial effect by instruct ing the

jury to limit its consideration of the evidence to the appropriate

defendant.

VII.6 4 United States v. Barbontin, 917 F.2d 1494, 149 7 (5th Cir.

1990).

65 Id.

66 11 F.3d 1225, 1236 (5th Cir. 1994).

26 SENTENCING ISSUES

McDonald, Richardson and Ross argue that the district court

did not proper ly apply the Sentencing Guidelines. In reviewing

sentencings, we review findings of fact made by the district court

for clear error. 64 We review the district court's application of

the Sentencing Guidelines de novo. 65

A.

McDONALD'S CLAIMS

McDonald claims that the district court did not determine the

drug quantity that was within the scope of his conspiratorial

agreement with the Fields organization, or what part of that

quantity was reasonably foreseeable by McDonald. In U nited States

v. Correon

, 66 this Court held that, in sentencin g a defendant for

participation in a drug conspiracy, a trial court must make three

findings: 1) when the defendant joined the conspiracy; 2) what

drug quantities were within the conspiracy; and 3) of these drug

qu antities, which were reasonably foreseeable by the defendant.

McDonald claims that, in finding that he was responsible for 120

kilograms of crack cocaine, the district court failed to make the

second and third findings. Therefore, he argues, he may have been

sentenced for drug sales outside of the scope of the conspiracy6 7 See United States v. Puig-Infante, 19 F.3d 929, 943 (5th

Cir.), cert. denied

, 115 S. Ct. 180 (1994)(a court can make

implicit findings as to contested facts so long as the reviewing

court is not left to second-guess the basis for the sentencing

decision).

27 into which he entered.

However, these findings can either be found in the presentence

report (which was adopted by the district court at sentencing), or

can be implied from t he district court's findings. 6 7 The

presentence report states that McDonald was personally involved in

the redistribution of approximately 120 kilograms of crack cocaine

in the course of making payroll deliveries and distributing drugs

to approximately three locations. If McDonald was personally

involved in the redistrib ution of approximately 120 kilograms of

crack cocaine, then that amount was clearly within the scope of the

conspiracy into which he entered, and was clearly foreseeable to

him. Accordingly, McDonald's sentence is affirmed.

B.

RICHARDSON'S CLAIMS

Richardson challenges his sentence on several grounds. First,

he notes that the guidelines changed the base level for his offense

from forty-two to thirty-eight by an amendment that went into

effect eight months after he was senten ced. He claims that the

failure to apply the reduced level to him imposed an "ex post facto

type" result on him. A defendant's sentence is normally based on

the Guidelines "that are in effect on the date that the defendant68 18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11(a).

6 9 United States v. Suarez, 911 F.2d 1016, 1021-2 2 (5th Cir.

1990).

7 0 See United States v. Davern, 970 F.2d 1490, 1492 (6th Cir.

1992)(en banc), cert. denied

, 113 S. Ct. 1289 (1993); United States

v. Boshell, 952 F.2d 1101 (9th Cir. 1991).

28 is sentenced. " 68 However, amendments that are enacted after a

defendant's offense but before sentencing are not a pplied when

doing so would increase the sentence, because applying them in such

a situation would violate the Ex Post Facto Clause of the

Constitution. 69 Richardson tries to turn the Ex Post Facto Clause

on its head by arguing that it requires this Court to apply

amendments taking effect subseque nt to sentencing when those

amendments would decrease a defendant's sentence. Richardson does

not cite any authority in support of this argument. This lack of

authority is hardly s urprising, because his argument is without

merit. The Ex Post Facto clause prohibits Congress from imposing

a har sher penalty upon someone after he commits a crime; it does

not require Congress to retroactively reduce penalties.

Richardson next argues that the guidelines ar e inconsistent

with 18 U.S.C. §§ 3553(a) and 3661. These statutes govern the

factors that a district court should consider in sentencing a

defendant. This is an issue of first impression in our circuit,

but has been addressed by the Sixth and Ninth Circuits. 7 0 Those

circuits found that Sections 3553(a) and 3661 are not inconsistent

with the guidelines, but rather set out factors that courts should

consider when sentencing within the guidelines. We find the29

position of the Sixth and Ninth circuits to be well-reasoned, and

hold that the guidelines are not inconsistent with Sections 3553(a)

and 3661.

Richardson next argues that there is insufficient evidence to

support t he district court's finding that he was responsible for

100 kilograms for crack cocaine and 125 kilograms of powder

cocaine. He also claims that the district court held him

responsible for drugs distributed by the conspiracy p rior to his

joining. Our review of the record, however, convinces us that the

evidence supports the district court's findin gs. The district

court found that Richardson joined the conspiracy in the summer of

1989, and was responsible for 100 kilograms of crack cocaine. The

district court also attributed half of the crack cocaine sold at

the car wash—a total of 84 kilograms—to Richardson. It was

apparent that the se quantities were based on Richardson's sales

while a part of the conspiracy. For example, there was testimony

that Richardson delivered money from the car wash to the game room

for the Fields organization. This testimony is sufficient to

support a finding that the crack cocaine sold at the car wash was

within the scope of the conspiracy into which Richardson entered.

Further, the fact that the district court only attributed half of

the cocaine sold at the car wash to Richardson indicates that only

the amount of drugs sold subsequent to his entering into the

conspiracy was considered for sentencing purposes.

Finally, Richardson argues that the 1994 amendment to U.S.S.G.

§ 2D1.1, which reduced the maximum level for the offenses committed71 See U.S.S.G. § 2D1.1(c)(1).

30 by Richardson to thirty-eight, should be applied retroactively.

However, the amendment did not go into effect unt il after

Richardson was sentenced, and was not included as sub ject to

retroactive application under U.S.S.G. § 1B1.10. Therefore, it is

not retroactive.

Finding no error in Richardson' s sentencing, we affirm his

sentence.

C.

ROSS' CLAIMS

Ross argues that the district court erred in setting his base

offense level at forty-two. The district court imposed the base

offense level at forty-two because it found that Ross' offense

involved mo re than fifteen kilograms of crack cocaine. 7 1 This

finding was a factual one, which we review only f or clear error.

Our review of the record convinces us that the district court did

not err. Ross was involved as a high-level, supervisory member of

the Ray Fields conspiracy for several years. This conspiracy

resulted in the sale of more than 1,000 kilograms of crack cocaine.

Thus, the dis trict court was justified in finding that Ross'

offense involved more that fifteen kilograms.

Finding no error in Ross' sent encing, we affirm Ross'

sentence.

IX.31 CONCLUSION

We VACATE Ray Fields' con viction on count two (conspiracy),

and AFFIRM the district court in all other respects.

VACATED IN PART AND AFFIRMED IN PART.