The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1306WMJ

___________ UNITED STATES OF AMERICA, * * Appellee, * Appeal from the * United States District Court v. * for the Western District * of Missouri, Southwestern EUGENE C. SAUNDERS, * Division * Appellant. * [UNPUBLISHED]

___________ Submitted: June 9, 1998 Filed: August 24, 1998

___________ Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER , District Judge 1

___________ PANNER, District Judge. Eugene Saunders appeals from his conviction for conspiracy to distribute cocaine base. He challenges th e sufficiency of the evidence, raises various evidentiary issues, andcontends that the district court violated his rights to confront and cross- examine his accusers. He also argues that the district court erred in refusing to give several of his requested jury instructions. We affirm.2 DISCUSSION I. Sufficiency of the Evidence In December 1996, Stormy Francis, a crack cocaine user, informed Jaspe r County Drug Task Force Officer Tom McCullah that defendant w as a supplier of crack cocaine. Fr ancis assisted in a controlled purchase of the drug. By dialing his page r numb er from a pay phone, Francis paged defendant to place a drug order. The pager
was registered to Monica Triplett, who, according to Francis, delivered cocaine fo r de fendant. Co-defendant James Barr, who had previously delivered drugs to Francis
on d efendant's behalf, returned the page by calling Francis using defendant's cellula r phone.

Afew moments later, Barr and co-defendant Keith Brown arrived in a car

. Franc is testified that Brown had also previously delivered drugs to her for defendant. The controlled delivery was executed. Later , the substance was confirmed to be crack cocaine. Fr ancis testified that during the delivery, she observed Barr and Brown i n possession of a large amount of cocaine powder and crack cocaine packaged in small plastic bags.
Police at tempted to arrest Barr and Brown and a high-speed chase ensued

. During the chase, a large num ber of small plastic bags containing cocaine powder and crack cocaine were thrown from the car. The ch ase ended when the car crashed. Barr was found with $1,800, $200 of which Francis had just given him. A pager and cellular phone were also in the car. Francis testified that defendant had been her main supplier of crack coc aine since the summer of 1996. She des cribed several specific instances in which she purchased crack cocaine directly from defendant, including the night before she contacte d McCullah. She also identified several people defendant used to make deliveries.3

McCullah testified that records show that during the ca r chase, a call was placed from the cellular phone to defendant's residence. Brown testified that during the chase, Barr called defendant to tell him that "Stormy set us up." The cellular phone service was terminated later that day. Cheryl Stevens, a.k.a. Cheryl Ha rbin, testified that she knew defendant and had seen him selling crack

cocaine. She did not specify a date. She also testified that she had s een him with a large amount of crack cocaine and large amounts of cash. Sh e admitted that she was currently on probation for selli ng cocaine, had tested positive for cocaine use while on probation, and had written bad checks.

Brown tes tified that he had sold crack cocaine on defendant's behalf i n December 1996 and that he had witnessed defendant answering pages and selling crack cocaine. He also ob served defendant give Barr a large amount of drugs and later saw Barr sell drugs and give the proceeds from the sales to defendant. Brown witnessed defendant give Barr the drugs which Barr then sold to Francis. Brown testified tha t defend ant had given him a pager with which to conduct drug sales. The pager h e described was similar to the one confiscated from the car.

We review the denial of a motion for judgment of acquittal based upo n sufficiency of the evidence by examining the evidence in the light most favorable to the government. United States v. Hester , 140 F.3d 753, 760 (8th Cir. 1998). To prevail in a conspiracy trial, the government must prove that there was an agr eement to achieve some illegal purpose, that the defendant knew of the agreement, and that the defendant knowingly be came a part of the conspiracy. United States v. Bass , 121 F.3d 1218 , 1220 (8th Cir. 1997). Defendant exposed potential weaknesses or biases in several of the government's witnesses. In addition to Francis's and S tevens's drug histories, defendant showed that Brown's testimony contradicted a previous statement regarding this case that Brown4

had given to investigators. Defendant also showed that Francis wa s paid money for her particip ation. Nonetheless, the jury credited the testimony of the government' s witnesses. Looking at the evidence in a light most favorable to the verdict, and without weighing the evidence or assessing the credibility of the witnesses, see , e.g. , Unite d States v. Hawkey , 1998 WL 331182, at *1 (8th Cir. June 24, 1998), we conclude that the evidence was sufficient to convict defendant of conspiring to distribute crack cocaine. II. Evidentiary Issues A. Sixth Amendment Right to Confront and Cross-Examine Defendant argues that the trial court erred in excluding testimony from Stevens reg arding a shooting incident between her son and defendant. The district court sustained the government's objection to this te stimony. In his offer of proof, defendant state d that Stevens's son shot defendant with a handgun and that there were pendin g first-deg ree assault charges and armed criminal action charges against Stevens's son.. Defendant argues that this evidence would have exposed Stevens's bias against him. Although the Sixth Amendment's Confrontation Clause g uarantees defendant the opportunity for effective cross-examinati on of witnesses against him, including inquiry into the witnesses' motivation and bias, it does not

pr event a trial judge from placing limits on defense counsel's cross

examinationof government witnesses. . . . [T]rial judges retain wid e latitu de insofar as the Confrontation Clause is concerned to impos e reaso nable limits on such cross-examination based on concerns about , among other things, harassment, prejudice, confusion of the issues, th e wi tness'[s] safety, or interrogation that is repetitive or only marginall y relevant. United St ates v. Willis , 997 F.2d 407, 415 (8th Cir. 1993)(citing Delaware v. Va n Arsdall , 475 U.S. 673, 678 (1986)) . Absent a clear abuse of discretion and a showing5

of prejudice to defendant, a district court's ruling l imiting cross-examination will not be reversed. Id.

We need not decide whether the district court erred when it excluded th e evide nce that Stevens's son shot defendant because any error was harmless under the five factors in Van Arsdall

. See Harrington v. Iowa , 109 F.3d 1275, 1279 (8th Cir

. 1997)(listing factors: (1) importance o f witness's testimony to entire case; (2) whether testimony was cumulative; (3) whether corroborating or contradi cting evidence existed; (4) degre e of cross-examination actually permitted; and (5) overall strength o f government's case). B. Large Amounts of Money Defen dant

argues that the district court erred in admitting Stevens's testimon y that she saw defendant with large amounts of cash, because such testimony wa s irrelevant and extremely prejudicial. We reject def endant's argument. See , e.g. , Bass , 121 F.3d at 1221(noting in dicta that presence of large amounts of cash often serve s to strengthen inference that defendant was distributing contraband).
C. Barr's Positive Cocaine Test Defendant appeals from the district court's failure to allow evidenc e showing that shortly after his arrest, Barr tested positive for cocaine. Defendant argues that if the jury had known that Barr was using cocaine, it would have determined that the cocaine atissue was Barr's and not defendant's. The fact that Barr had cocaine in his system neither proves nor disproves that defendant was the supplier. Without other evidence as to the source of the cocaine, the district court properly excluded this evidence. III. Jury Instructions Defendant appeals from the district court's failure to give four of his requested instructions. A defendant requesting a specific instruction is "entitled to an instruction that conveys the substance of his request if his request is timely, it is supported by6

evide nce in the case, and is a correct statement of the law." United States v. Tucker , 137 F.3 d 1016, 1036 (8th Cir. 1998). As long as the instructions given adequatel y convey the law, the defendant is not entitled to any particular formulation. Id.
A. Defendant's Instructions "D," "E," and "F" These three instructio ns would have apprised the jury that mere presence at the crime sce ne or mere knowledge that a crime is being committed is insufficient to find defen dant guilty of a conspiracy charge. The court rejected these instructions , preferring an instruction containing the following: You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with ot hers, does not prove that a person has joined in an agreement o r understanding. A person who has no knowle dge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member. The given instruction, while not as explicit as defendant's requested instructions in some res pects, adequately and fairly informed the jury of the law relevant to th e case . The district court did not err by refusing to give defendant's requeste d instructions. B. Defendant's Requested Instruction "A" This in struction would have informed the jury that Brown was facing a mandatory minimum sentence and that the prosecutor could f ile a motion to reduce that senten ce based on Brown's substantial assistance. It also stated that Brown hoped to receive a reduced sentence in return for his cooperation with the government i n defendant's case. The instruction made clear that if the government filed a motion to reduce the sentence, the ultimate decision was up to the judge.7

The district court rejected this instruction and instead relied o n two others. First, the court i nstructed the jury to consider a number of items in assessing a witness' s credibility, including any motives that the witness may have for testifyi ng a certain way. Next, the court informed the jury that Brown was p arty to a plea agreement with th e government and that depending on the extent of his cooperation, the governmen t had agreed to move for a downward departure pursuant to the United States Sentencing Guidelines. It further informed the jury that it could give Brown's testimony suc h weight a s it thought it deserved. The jury was told that it was to determine whethe r Brown's te stimony may have been influenced by the plea agreement or th e government's promise. The instruction made no mention of the mandatory minimum sentence Brown faced.
Defendant maintains that the absence of a reference to the mandatory minimum
sen tence was prejudicial. Defendant's theory is that the jury would have discredite d Brown's testimony if it had known how much he had at stake. We disagree. Th e instructions given adequately informed the jury of Brown's motives for testifying and correctly described the applicable law. The distri ct court did not err in refusing to give the requested instruction.
Affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.