___________ No. 95-4216

___________ United States of America, * * Appellee, * * v. * * Barry Keith Wilson, * * Appellant. * Appeals from the United States District Court for the Eastern District of Missouri
.

___________ No. 95-4217

___________ United States of America, * * Appellee, * * v. * * Frederick Fernando McGee, * * Appellant. *

___________ Submitted: May 14, 1996 Filed: January 2, 1997

___________ Before MORRIS SHEPPARD ARNOLD, Circuit Judge, and HEANEY and HENLEY , Senior Circuit Judges.

___________ HENLEY, Senior Circuit Judge.
Barry Keith Wilson and Frederick Fernando McGee were convicted o f conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846. McGee was also convicted of assault

### The Honorable Edward L. Filippine, United States Senio r 1 

### District Judge for the Eastern District of Missouri. -2- on a federal officer with a deadly weapon under 18 U.S.C. § 111. Wilson and McGee have filed separate briefs on appeal and raise several separate issues. After consid eration of each claim raised, we affirm the judgment of the district court as to each defendant. 1

BACKGROUND On March 8, 1995, two DEA agents on drug interdiction patrol at St. Louis' Lambert Airport observed two persons late r identified as Wilson and McGee standing in line at an airport ticket coun ter. The two men appeared
nervous and were looking around. The agents noticed that McGee had braide d hair and a gold tooth. The agents saw Wilson count out cash and hand it to the ticket agent and also saw McGee write som ething on a piece of paper and hand it to the ticket agent.

After McGee and Wilson left the ticket counter, the DEA agent s questioned the ticket agent and learned that Wilson and McGee had paid in cash for a round trip ticket for the next day fr om Phoenix to St. Louis in the n ame of Laura Dugan. The piece of paper McGee handed to the ticke t agent gav e the name Freddie Lakes as the name of the purchaser of th e ticket.

Because they were suspicious that in the circumstances this cas h purchase of a plane ticket suggested a drug tran saction, the next day drug task forc e agents waited at the gate where Dugan's plane was to arrive
. They ob served her as she deplaned and walked to the baggage area. The y noted that she was looking around and appeared nervous.

As she left the terminal, one of the agents approached Dugan an d identified himself. He questioned her and then asked if she would agree to be searched. Dugan agreed and a search of her

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person revealed a package containing approximately half a kilogram o f cocaine taped to her waist under her clothing. Dugan agreed to cooperate and gave a statement about her trip to St. Louis.

She stated that her real name was no t Laura Dugan but Kirsten Mactas and that she was deli vering the drugs for a man named Big John. Later it
was learn ed that her real name was not Kirsten Mactas but Tara Deatsch

Wright. Deatsch-Wright stated that she was to deliver the cocaine to a ma n she didn't know but whose name was Fred and who would have his hair i n bra ids and a gold tooth. She was to meet Fred at the Hampton Inn Hote l near the airport.

Deatsch-W right agreed to assist the officers by making a controlled delivery of the cocaine at the hotel. Officers on stakeout at the hotel observed Wilson and M cGee arrive in a van. They then saw Wilson take the suitcase containing t he cocaine. As the officers moved in both McGee and Wilson attempted to flee but Wilson was apprehended. McGee, however, drov e off in the van, running over the foot of a DEA agent in the process. McGe e was apprehended some days later.
Wilson was convicted and sentenced to 151 months in prison fo r conspiracy to possess crack cocaine with intent to distribute. McGee was convicted of that charge and also of assault on a federal officer with a deadly weapon (for running over the officer's foot with the van in hi s attempt to flee) and was sentenced to 276 months in prison.

BARRY WILSON Wilson's defense theory at trial was that he was merely a friend and companion of McGee who happened to be in the wrong place at the wrong time
. He contended that he knew McGee primarily from t heir performances together in a rap music group. Wilson argued that he had loaned money to various people before and tha t he had agreed to loan McGee the money necessary to buy a plane ticket for a woman McGee described as his girlfriend.
Wilson attempted to show that he accompanied McGee on the trip to the airport to purchase the ticket because he wanted to make sure the loa n actually w ent toward the plane ticket. Wilson also contended that h e

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accompanied McGee to the Hampton Inn Hotel becau se McGee invited him to go along to pick up his girlfriend.

Wilson in sisted that he knew nothing of any involvement by McGee in drug t rafficking and that he had no idea that the woman described a s McGee's girlfriend was actually delivering drugs. Thus, he argued that hi s presence at the airport and the hotel was purely innocent. He also argued that he had no knowledge that the suitcase brought to the hotel by Deatsch

Wright contained drug s and that he had no intent to possess or distribute any drugs.
Despite the testimony elicited by Wilson in support of this theor y of the ca se, the jury found him guilty of conspiracy to possess cocain e base with intent to distribute.

Wilson raises three issues on appeal. First, he argues that th e trial court erred in refusing to allow him to call a defense witness who he alleges would have corroborated a portion of his defense. Second, he contends that the evidence was insufficient as a matter of law to establis h
a conspir acy. Third, Wilson contends that the trial court erred i n senten cing him under the enhanced penalties applicable to cocaine bas e (crack cocaine). He argues that the evidence was insufficient to establis h that the cocaine seized was cocaine base.
Trial Court Ruling on Admissibility of Proffered Defense Testimony
. At tr ial Wilson did not testify and put on no witnesses in his ow n defense. Wilson's attorney did, however, examin e eight witnesses produced by co-defendant McGee. All of these witnesses offered testimony in suppor t of Wilson's reputation and character;

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for example, that they had no knowledge that Wilson was ever involved in any illegal drug acti vity. This and other testimony from these witnesses could be viewed as supporting Wilson's defense theory.
On the last day of testimony in the week long trial, Wilson moved to int roduce in support of his defense the testimony of one Al Jones
. Wilson's attorney stated in a proffer of proof that Jones would testif y that "Barry [Wilson] told him . . . that Barry w as going to be heading out to the airport to pick up somebody's girlfriend." Wilson contended that this testimony by Jones would have tended to corroborate his version o f events, i.e. , that he was making the trip to pick up a person he believed
was Mc Gee's girlfriend, not accompanying McGee to accept delivery o f illegal drugs.

The government raised two objections to this proposed testimony
. First, the government contended that the introduction of testimony fro m Jones would violate an order requiring sequestration of all witnesses whic h
was entered at the beginning of the trial. Both sides had agreed - and th e court had ordered - that witnesses should be seq uestered, i.e. , no witness could att end sessions of court and listen to the testimony of othe r witnesses. Because counsel for Wilson had not intended to call Jones he had not been barred from the courtroom and had, in fact, attende d unspecified portions of the proceedings during t he first three days of the trial. The government argued that it would violate this order and unfairl y advantage the defenda nt to call as a last minute witness a person who had sat thro ugh the proceedings and listened to the testimony of othe r witnesses for the government and defense.

The government also objected that this proposed testimony wa s inadmissible as hears ay, i.e. , Jones would testify about something he had heard Wilson say outside the courtroom. The government noted that Wilson' s counsel had stated in his opening argument that

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Wilson would testify in his own behalf and had o utlined the nature of that testimony. However, the government said, it appeared that Wilson had late r decided not to testify but to use Jones as a means of testifying indirectl y without subjecting himself to cross-examination.

Counsel for Wilson contended: (1) he had no intent to subvert th e sequestration order a nd had just learned late the night before that Jones might have relevant information; and (2) the proposed testimony of Jones should be admitted un der the exception to the hearsay rule for statements of the declarant's then existing state of mind.
The trial court considered at some length on the record the arg uments of counsel on the proposed testimony of Jones and then ruled that th e testimony was inadmissible both because Jones ha d not been sequestered and because his testimony would be inadmissible hear say. The trial court also noted tha t to the extent Jones would be asked to testify about Wilson' s reputation for good character and lack of involvement in drug activities such testimony would be merely cumulative to the testimony elicited from other witnesses by Wilson's counsel.

Wilson now contends that the exclusion of Jones' testimony wa s rev ersible error. He argues again that Jones' testimony was admissibl e under the exception to the hearsay rule for evidence of the declarant' s then existing state of mind. He also argues that Jones' testimony would not have violated the intent behind the sequestration order because counse l simpl y hadn't known that Jones had relevant evidence to offer. Wilso n further contends that he was prejudiced by the trial court's ruling becaus e Jones was the only witness who could have testified to the specific fact that when Wilson went with McGee to pick up Deatsch-Wright he had describe d it as going to the airport to pick up McGee's girlfriend.

### -7- It is, of course, axiomatic that we give great deference to th e rulings of the trial court on evidentiary matters such as the admissibilit y of proffered testimony. United States v. Logan , 49 F.3d 352, 358 (8th Cir
. 1995). We will overturn such rulings of the tri al court only for abuse of discretion. See , e.g. , United States v. Delpit , 94 F.3d 1134, 1146 (8th Cir. 1996).

In thi s case, we believe that the trial court neither abused it s discretion nor prejudiced the defendant by its ruling. The statement by Jones about what defendant Wilson had told him was clearly hearsay, an out

of-court statement by a declarant whose reliabil ity could not be tested as to the truth of the matter asserted in the statement. See F. R. Evid. 801
. While it might be possible that the proffered statement could have bee n characterized as a statement by the defendant re flecting his then existing state of mind, see F. R. Evid. 803(3), we find no abuse of discretion in the trial court's ruling. See , e.g. , United States v. Worley , 88 F.3d 644 , 646 (8th Cir. 1996).

In additi on, the trial court clearly acted within its discretion in concludin g that Jones could not be called to testify at the last minut e after si tting in the courtroom and listening to much of the case. Th e parties h ad agreed pursuant to Federal Rule of Evidence 615 to an orde r requiring the sequestration of witnesses. Giventhis order, the court did not believe it would be fair to allow Jones to h ear the testimony of other wit nesses and then possibly tailor his own testimony accordingly. See , e.g. , United States v. Shurn , 849 F.2d 1090, 1094 (8th Cir. 1988). Such a decision is committed to the sound discretion of the trial court. United States v. Kindle , 925 F.2d 272, 276 (8th Cir. 1991).

In any event, we do not believe Wilson was prejudiced by the tria l court's ruling. Wilson's trial counsel brought out through his questionin g of eight other witnesses the contention that Wilson was unaware of, and no t involved in, any drug activity. As the

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trial court noted, Jones' testimony would merely have been cumulative to this other evidence. Logan , 49 F.3d at 358. Th e jury considered Wilson's versio n of events but apparently rejected it as unpersuasive an d accordinglyconvicted. We do not find any reversible error in the trial court's ruling to exclude the Jones testimony.
Sufficiency of the Evidence
. Wilson also contends on appeal that the evidence was insufficient as
a m atter of law to support a conviction for conspiracy with intent t o distribute. He argues that at most the evidence showed his presence at th e scene of a drug delivery.

The standard of review on a claim of insufficient evidence i s str ingent. We review the evidence in the light most favorable to th e jury's ve rdict. United States v. Jenkins , 78 F.3d 1283, 1287 (8th Cir
. 1996). And, we give the verdict the benefit of all reasonable inferences that might be drawn f rom the evidence. United States v. Gaines , 969 F.2d 692, 696 (8th Cir. 19 92). We will overturn the jury's verdict only if no
reason able jury could have concluded that the government proved th e elements of the offense beyond a reasonable doub t. Logan , 49 F.3d at 359.
In order to prove the existence of a conspiracy, the government must show that at least two persons entered an agreement and the objective of the agre ement was a violation of law. United States v. Scott , 91 F.3 d 1058, 1061 (8th Cir. 1996). Wilson claims here that there was insufficien t evidence that he agreed to possess or distribute cocaine base to convict him of conspiracy.

It is true that the evidence of Wils on's intent to join a conspiracy
was ci rcumstantial. However, it is established that the agreemen t necess aryfor a criminal conspiracy may be proved by circumstantia l evidence and inferenc es to be drawn from that evidence. Jenkins , 78 F.3d at 1287. In many conspiracy cases

### Wilson raised the claim that he was wrongly sentenced fo r 2 

### conspiracy to distribute cocaine base in a supplemental brie f filed after a rgument. We granted leave to file the brief and her e consider the argument on its merits. -9- the re is no confession by the defendant or other direct proof that h e agreed to the illegal act. However, the jury is free to consider all the evidence - direct and indirect - presented of the defendant's statements and actions. Id. The jury is also free to draw reasonable inferences fro m the evidence presented about what the defendant's state of mind was when he did or said the things presented in the evidence. Id.

In this c ase it may be possible that the jury could have believe d Wilson's story and could have acquitted him of conspiracy. But that is no t the same as saying th at the jury's verdict of guilty cannot stand. There is more than enough evidence in the record to support the jury's conclusio n

- implici t in its verdict -that Wilson was a knowing participant in th e events in question and not merely an unfortunate innocent. Wilson provide d the ca sh necessary to purchase Deatsch-Wright's plane ticket an d accompanied McGee to the airport to purchase that ticket. The ticket was for travel the very next day. Wilson was also present at the hotel when Deatsc h-Wright arrived to deliver the drugs. Deatsch-Wright handed th e suitcase containing t he cocaine to Wilson. When confronted by the police at the hotel, Wilson attempted to flee.

This evidence is sufficient to establish Wilson's knowing an d intentional participation in the conspiracy. Accordingly, Wilson' s conviction was not an error of law.
Sentencing for Cocaine Base
. In his third issue on app eal, Wilson contends that it was error for 2 the district court to sentence him under the enhanced statutory minimum fo r cocain e base and the enhanced sentencing guidelines for crack cocain e because there was insufficient

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evidence to permit the court to conclude that th e form of cocaine involved here was cocaine base or crack. We reject this claim.
Although for scientific purposes cocaine and cocaine base ar e cons idered the same substance, under the Federal Sentencing Guideline s cocaine base is defin ed as "crack cocaine" and greater punishment applies to cocaine base than to cocaine. As we have pre viously held, whatever the merits of the argument that such enhanced penalties are unsound as a matte r of p olicy, we are not at liberty to judicially revise the Sentencin g Guidel ines and the enhanced penalties for cocaine base are no t unconstitutional. United States v. Clary , 34 F.3d 709, 712 (8th Cir. 1994) , cert. denied , 115 S. Ct. 1172 (1995).
The gover nment's forensic chemist testified that the substance here
was "cocaine base" and that conclusion was not contradicted by any other eviden ce. Thus, there unquestionably was sufficient record evidence t o support the court's sentence as well as the jury's verdict. Gibson v
. Bowersox , 78 F.3d 372, 373-74 (8th Cir.), cert. denied , 117 S. Ct. 15 8 (1996); Dobynes v. United States , 991 F.2d 801 (8th Cir. 1993). It i s irr elevant that the chemist did not specifically say "this substance i s cocaine base which is the same as crack" or words to that effect and Wilso n has cited no authority for the proposition that the magic word "crack" mus t always be used instead of the term cocaine base. Accordingly, we den y Wilson's claim that his sentence was in error.

FREDERICK McGEE McGee ra ises three issues on appeal: (1) the grand jury indictmen t
was defective and McGee's motion for acquittal should have been grante d because Deatsch-Wright later admitted that her story was false in som e particu lars; (2) co-defendant Wilson's counsel made statements in hi s closing argument which created an irreconcilable conflict between th e defendants and required severance; and (3) the evidence was insufficient to convict. We

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find no merit in any of these arguments and affi rm the judgment entered by the district court on the jury's verdict.
Motion for Acquittal. The female drug courier eventually identified as Deatsch-Wrigh t originally told investigating officers that her name was Kirsten Mactas an d that she was delivering the drugs to St. Louis f or a man named "Big John." She also claimed that she was a prostitute and e xotic dancer when she was, in fact, married and operated a tax preparation service. It was on this basis that the officers arranged for the controlled delivery, Wilson and McGee were arrested, and indictments were obtained. It was not unti l shortly before trial that the police learned Deatsch-Wright's real identit y and that the man she was carrying the drugs for was actually known a s "Bird."

McGee contends that because Deatsch- Wright's earlier statements were shown by her later statement to be unreliable in some respects, all th e information given by Deatsch-Wright was unsound and the indictment was not based on probable cause. We find this argument singularly unpersuasive.
It is true that Ms. Deatsch-Wright d id not originally tell the whole truth. For instance, she lied about her true name. However, many of the details about how she came to carry the drugs from Phoenix to St. Loui s were c orroborated by the investigating officers before McGee and Wilso n were arrested. In particular, Deatsch-Wright's statement was correct as to th e name and appearance of the person to whom she was to deliver th e drugs and matched closely the officers' own observation of McGee' s appearance.

We find nothing in Ms. Deatsch-Wright's statement so inherentl y unreliable that it wa s unreasonable for the investigating officers or the grand jury to rely upon it in

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arresting and chargin g the defendants. The decision on granting a motion for acqui ttal is within the sound discretion of the trial court and th e court clearly acted within that discretion here. United States v. Hunter , 95 F.3d 14, 16 (8th C ir. 1996); United States v. French , 88 F.3d 686, 688 (8th Cir. 1996).

Severance
. In closing argument, counsel for Wilson made the following stat ement:

Mrs. W right was down in Phoenix with Bird and Boom and a girlfriend talking about Fred. At the airport, Fred signs the paperwork, and signs it Frederick Lakes. At the Hampton Inn, they are waiting for Fred. Fred shows up. Fred runs, Fre d hops in the van, races t he engine, spins the tires, takes off, runs over a cop. Fred did that. They get Fred's f ingerprints, theyfind a lot of pieces of paper, the various evidence that you have seen, got Fred' s name on it. Fred, Fred, Fred, Fred. Fingerprint, money order, clothes, but you don't hear abou t Barry.
Counsel for McGee did not object during the clos ing argument but moved for a new trial in part based on the argument that M cGee was prejudiced by his joint trial with Wilson. The trial court overruled the motion for ne w trial.

McGee now contends that the statemen t of Wilson's counsel in closing argument is evidence of an irreconcilable conflict between the defendants which r equired that the defendants be tried separately to avoid undu e prejudice.

In every case of multiple criminal defendants there is th e possibility - even the likelihood - that at some point the interests of th e individual defendants will diverge. There is also the possibility that th e jury may be prejudiced in its consideration of the charges against on e defend ant by evidence bearing on the actions of another defendant
. However, the mere

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possibility of incons istent interests or spillover evidence is not enough to require overturning verdicts reached in a joint trial.
The issue of whether to sever multip le defendants is assigned in the first instance to the discretion of the trial court. United States v
. Smith , 5 78 F.2d 1227, 1235 (8th Cir. 1978). The decision of the tria l court will only be overturned for abuse of discretion. Id
.
Here, we find no abuse of discretion. First, we do not agree tha t the cited statement by Wilson's counsel in closing argument shows a n irre concilable conflict. Second, even if there was such a conflict , according to McGee it came to light only in the closing arguments when the jur ors were already well familiar with the facts against the individua l defend ants. Moreover, by that time considerable judicial resources ha d already been expendedin the joint trial. To reverse on such speculative ground s here would waste judicial resources and would essentially giv e defendants such as Mc Gee the option of waiting to see how the joint trial goes before raising the conflict issue and requesting a separate trial. We believe the trial court's decision to overrule McGee's belate d request for severance was correct and clearly not an abuse of discretion.
Sufficiency of the Evidence
. Final ly, McGee contends that the evidence against him wa s insufficient as a mat ter of law to support a conviction for conspiracy to pos sess crack cocaine with intent to distribute. McGee's argument tha t there w as insufficient evidence of an agreement parallels that of co

defendan t Wilson and we reject it on the same basis. If anything, th e specific evidence tyi ng McGee to the drug conspiracy was stronger: it was McGee who was alleged to have known the cocaine distributor in Phoenix; it
was McGee whose name and physical description were given by the dru g courier; and

### McGee filed a motion to join the argument raised by Wilson in 3 

### hi s supplemental brief that there was insufficient evidence t o support the sentence enhanceme nt for cocaine base. We granted the motion allowing McGee to raise this issue but reject the claim on its merits for the same reasons noted above for Wilson. -14- it was McGe e who fled the hotel and remained at large for some tim e thereafter. As we no ted with respect to defendant Wilson, the jury might have believed the defense theory and acquitted. However, the argument tha t there was insufficient evidence to convict McGee is clearly with out merit. 3
For the reasons stated, we affirm the judgments of conviction e ntered against Barry Wilson and Frederick McGee.
A true copy.

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