* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is

not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-40705

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL DEWAYNE ADKISM

and

STAFFORD DEWAYNE PATTERSON,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(3:97-CR-4)

_________________________

April 26, 1999

Before REAVLEY, POLITZ, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Michael Adkism and Stafford Patterson

raise sufficiency of the evidence and

evidentiary challenges related to their

convictions of conspiracy to possess cocaine

base (crack cocaine) with the intent to

distribute and of possession with the intent to

distribute. Finding no reversible error, we

affirm.

I.

TheRegionalDrug Task Force and the

Mobile Enforcement Team of the Drug

Enforcement Administration (“DEA”)

(collectively, the “team”) initiated a narcotics

investigation in Paris, Texas, focusing on the

distribution of cocaine base. They used

confidential informants (“CI's”) and

undercover officers to purchase drugs,

recording many ofthe transactions on video or

audio. The team made numerous buys from

most of the numerous co-conspirators named

in the indictment, including Michael Adkism,

Al Green, and Rodney Thomas, at Record

Park, the Westgate apartment complex, and

the Razzmatazz Club. They delayed making

arrests, however, to maximize the productivity
2

of their undercover work. For example,

undercover officer Robert Bridges,

accompanied by CI Archie Booker, made one

such buy-walk from Adkism at his home.

Bridges obtained 7.27 grams of crack (about

1⁄4 of a crack “cookie”) for $500, and Adkism

indicated that he could sell them more.

As part of the culmination of their

efforts, the team planned a buy-bust sting

operation in which they intended to purchase

one kilo of crack from Green. William “B.B.”

Block, a/k/a Smokey, a CI working for the

DEA, who already had purchased a big 8 (c

of a kilo) from Green, set up the deal. Green

said he would have to get a price from his

supplier, Thomas. They eventually agreed on

$20,000.

The team originally planned to carry

out the bust at a Holiday Inn room furnished

with electronic monitoring devices or in the

local Super One parking lot; Green refused

both locations. Instead, he chose Johnson, or

Martin Luther King (“MLK”), Park. Block

picked up Green at Green's house and drove to

the park, where they met Thomas.

Thomas had come from his brother

Kevin Thomas's house. His associate, Marcus

Hooker, had been there with him. Hooker and

Thomas originally had planned for Hooker to

stage a robbery of Thomas, so they could take

the money instead of handing it over to

Stafford Patterson, the supplier. They also

planned to rob Block of the dope, hence

making a double score. Their plans were

thrown off, however, when Patterson arrived

a day earlier than expected. He showed up at

Kevin Thomas's house the day of the bust.

Perhaps suspecting foul play, Patterson had

Hooker remain at the house while Thomas

carried out the deal.

When Block and Green arrived at

MLK park, Thomas climbed into Block's jeep

to explain how the deal would go down. He

said the drugs were in the park; but Block, in

an apparent effort to stall for time, informed

Thomas that he had to get the money.

Thomas waited in his pickup, while Block

dropped Green off at his house and met briefly

with agents to review the new plan for the

bust.

The team converged on the park.

Block climbed into Thomas's pickup and told

him that the man in a Lexus parked near by

was his brother, with the money. The man

actually was DEA agent Robert Crawford.

Block insisted on seeing the drugs first, and

the two men moved into the park. Thomas

had become nervous afterspotting a white van

that he suspected might be law enforcement (It

was, in fact, occupied by two DEA agents,

who had backed off.). Nonetheless, Thomas

soon showed Block a brown paper bag in a

trash can that contained a plastic bag full of

crack (later determined to be just under 900

grams).

Upon seeing the drugs, Block removed

his hatSSa signal that the drugs were there and

they could make the arrests; no agent saw the

signal. Crawford attempted to call the agents,

but his mobile phone did not work. While

waiting for backup so the arrests could be

made, Crawford stalled Thomas. He showed

the money, counted some of it, and argued

with Thomas over whether it was all there.

Meanwhile, Hooker had stopped by the

Razzmatazz, where he ran into Patterson

sitting in his car. Patterson told him that

Thomas should be back in 15 to 20 minutes.

Hooker proceeded to the park, where he

slowly drove past the deal as it took place. He

did not intervene.

As time passed, Thomas grew

increasinglyanxious. Crawford eventually had

to hand over all the money. Thomas left in

one direction, while Block headed another

with the drugs. Thomas came across Hooker

as he drove down the street, and they pulled

into a parking lot. Hooker told Thomas that

earlier he had seen several white men in a car

observing the deal in the park. Thomas took

off on foot with the money. He eluded

authorities for over a week while he blew all

the money in a hedonistic spree.

Hooker returned to the Razzmatazz,

where he was arrested when drugs happened
3

to fall out of his pocket. The team also

arrested Patterson, apparently still in his

vehicle. No drugs were found in his car,

however, and he was released from jail a few

days later after state charges were dropped.

While Patterson was in jail, his wife

called co-conspirator Herbert Hill, Jr., to

collect moneyhe owed for crack Patterson had

fronted him. After being released, Patterson

collected $1,200 in drug proceeds from Hill.

Another ofThomas's brothers, Clinton

Thomas, had purchased crack from Adkism

several times a week in the months preceding

the bust. He testified that Adkism became

nervous after the bust and briefly left town.

He returned, however, and continued selling

crack out of his home until arrested on the

federal indictment.

II.

A grand jury returned a twenty-sixcount indictment against thirteen defendants.

Adkism and Patterson were charged with

conspiring with Christopher Burns, Ronnie

Davis, John Fisher, Terry Hearn, Aubrey

Jenkins, Randy Miles, Green, Hill, Hooker,

and other. The grand jury named Thomas as

an unindicted co-conspirator. Ten of the coconspirers pleaded guilty to various charges

and several, including Thomas, testified at

trial. Thomas said that Patterson supplied him,

Adkism, Green, and Hill with crack. They

purchased it from Patterson to resell in smaller

amounts.

The grand jury returned a five-count

superseding indictment against Patterson and

Adkism.1 A petit jury returned a guilty verdict

on counts 1, 2 and 4.

III.

A.

The defendants contend that the

district court erred in refusing to exclude

testimony obtained from co-conspirators

pursuant to plea agreements. The court

should have excluded this testimony, they

aver, because it violates 18 U.S.C. §

201(c)(2), which prohibits giving or promising

a witness anything of value in exchange for his

testimony. Adkism and Patterson do not seek

a new trial but argue that when conducting our

sufficiency ofthe evidence review, we may not

consider evidence obtained in violation of the

statute.

After the defendants submitted their

brief, we decided United States v. Webster,

162 F.3d 308 (5th Cir. 1998), and United

States v. Haese, 162 F.3d 359 (5th Cir. 1998),

in which we addressed and rejected the

Singleton argument2 raised here. In Webster,

we reviewed for plain error and found that any

error made was not plain. See Webster,

162 F.3d at 357-58. In Haese, again

reviewing for plain error, we went further and

rejected the argument altogether. We held

that “it is evident to this court that Congress

did not intend for section 201(c)(2) to be used

when prosecutors offer lenity for a witness'

truthful testimony.” Haese, 162 F.3d at 367.

Testimony induced by plea bargains is not

illegal. The court did not err in admitting the

testimony, and we may consider it here.

 

1 The grand jury charged both Adkism and

Patterson in count 1 with conspiracy to possess a

controlled substance, 50 grams or more of cocaine

base, with intent to distribute, in violation of 21 U.S.C.

§ 846. Adkism was charged in count 2 with

possession with intent to distribute and distribution of

crack cocaine, in violation of 21 U.S.C. § 841(a), and

in count 3 with the use of a communication facility to

commit a controlled substance offense, in violation of

21 U.S.C. § 843. Patterson was charged in counts 4

(continued...)

(...continued)

and 5 with a violation of 21 U.S.C. § 841, and with

distributing and possessing with intent to distribute

crack cocaine within 1,000 feet of a playground, in

violation of 21 U.S.C. § 860, respectively. The grand

jury included a violation of 18 U.S.C. § 2 (aiding and

abetting) with each of the five counts. Counts 3 and 5

were later dismissed.

 

2 The argument is so named because of United

States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), in

which the court adopted it. That decision has since been

vacated and the case reheard en banc, whereupon the

court rejected the notion that testimony obtained via plea

agreements violates § 201(c)(2). See United States v.

Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc).
4

B.

Adkismand Patterson contend that the

government presented insufficient evidence

that they conspired to possess crack cocaine

with the intent to distribute it. They raise both

legal and factual sufficiency challenges.

1.

“Our review for sufficiency of the

evidence following a conviction is narrow.”3

We view the evidence and all reasonable

inferences that can be drawn therefrom in the

light most favorable to the verdict. See United

States v. Burton, 126 F.3d 666, 669 (5th Cir.

1997). Ordinarily, we must affirm if a rational

trier of fact could have found that the

government proved the offense's essential

elements beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979);Burton,

126 F.3d at 669. The evidence need not

exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is

free to choose among reasonable constructions

of the evidence. See id.; Westbrook, 119 F.3d

at 1189.

The defendants moved for a judgment

of acquittal at the end of the government's

evidence but failed to renew the motion at the

close of their evidence. In these

circumstances, our review is even more

narrow: We will reverse only if a conviction

resultsin a manifest miscarriage ofjustice. See

United States v. Rivas, 157 F.3d 364, 368 (5th

Cir. 1998); United States v. Inocencio,

40 F.3d 716, 724 (5th Cir. 1995). “Such a

miscarriage would exist only if the record is

devoid of evidence pointing to guilt, or . . .

because the evidence on a key element of the

offense was so tenuous that a conviction

would be shocking.” Inocencio, 40 F.3d at

724 (quoting United States v. Pierre, 958 F.2d

1304, 1310 (5th Cir. 1992) (en banc)).

2.

To obtain a conviction of conspiring to

violate the drug laws under 21 U.S.C. § 846,

the government must prove (1) an agreement

between two or more persons to violate the

drug laws, (2) that each alleged co-conspirator

knew of and intended to join the agreement,

and (3) that each co-conspirator voluntarily

participated in the agreement.4 An express

agreement is not required; a tacit agreement

suffices. See Westbrook, 119 F.3d at 1189.

The elements may be established by

circumstantial evidence. See id. The

agreement “may be inferred from concert of

action. Knowledge of the conspiracy may be

inferred from a collection of circumstances.”

Dixon, 132 F.3d at 201. “[V]oluntary

participation may be inferred from a

development and collocation of

circumstances.” Id. (quotation omitted).

A guilty conspirator “need not know

all the details of the unlawful enterprise or

know the exact number or identity of all the

co-conspirators, so long as he knowingly

participates in some fashion in the larger

objectives of the conspiracy.” Westbrook,

119 F.3d at 1189. A jury may convict "where

a pivotalfigure directs and organizesthe illegal

activity, and has extensive dealings with each

of the parties. Thus, parties who knowingly

participate with core conspiratorsto achieve a

common goal may be members of an overall

conspiracy, even in the absence of contact with

other conspirators.” Inocencio, 40 F.3d at

725 (quotations and citations omitted). If the

government has established the existence of an

illegal conspiracy, then “it need only introduce

slight evidence to connect an individual

defendant to the common scheme.”

Westbrook, 119 F.3d at 1190 (internal

quotation marks omitted).

One who aids and abets an offense may

be punished as a principal. See Burton,

126 F.3d at 670. To obtain a conviction of

aiding and abetting, the government must

 

3 United States v. Westbrook, 119 F.3d 1176,

1189 (5th Cir. 1997), cert. denied, 118 S. Ct. 1059, and

cert. denied, 118 S. Ct. 1060 (1998) (citing United

States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).

 

4

See United States v. Dixon, 132 F.3d 192,

201 (5th Cir. 1997), cert. denied, 118 S. Ct. 1581

(1998); Westbrook, 119 F.3d at 1189; Inocencio,

40 F.3d at 725.
5

prove “that the defendant (1) associated with

the criminal venture; (2) participated in the

venture; and (3) sought by action to make the

venture succeed.” Id.

3.

Patterson and Adkism attack the

evidence as insufficient to establish a

conspiracy. The thrust of their argument

appears directed at the first prongSSthe

agreement. They claim that the evidence

shows “there was a lack of an agreement to do

anything but look out for themselves while

they were individually selling drugs.” But,

contraryto their assertion, substantial evidence

supportsthe existence of a tacit agreement for

Patterson to supply crack cocaine to other

dealers, who would in turn sell it.

Furthermore, the evidence supports the jury's

implicit finding that those other dealers had a

tacit arrangement to supply each other with

drugs if and when they ran out.

The district court rejected the

defendants' motion for acquittal, citing the

following evidence:

Going through the testimony

here, Juan Council testified

that he bought crack cocaine

fromboth Defendants. Aubrey

Jenkins, who is named in the

Indictment as one of the

alleged co-conspirators,

testified that he bought from

Mr. Adkismand that the sellers

of crack in Paris supported

each other by supplying each

other when they ran short.

Al Green testified

about his role in the delivery

on January 16, 1997, at

Johnson Park and his

participation with the

Government Informant

Smokey, who turned out to be

William Block. Al Green also

testified that he once traded a

shotgunfor crack cocaine from

Stafford Patterson in 1995.

William Block, t h e

Confident ial Informant,

testified about his actions on

January 16, 1997, involving

the kilogram transaction with

Rodney Thomas.

Rodney Thomas then

testified that Stafford Patterson

fronted crack cocaine to him,

that he once accompanied

Stafford Patterson to Herb

Hill's house to pick up money

for crack cocaine. Herb Hill is

one of the alleged coconspirators in the Indictment.

He also testified that he had an

understanding with Michael

Adkism to supply each other if

they ran short of crack

cocaine. Rodney Thomas

furthertestified that onJanuary

16, 1997, that he talked to

Stafford Patterson about

buying the kilogram of crack

cocaine and about the price.

He went with Stafford

Patterson to Al Green's to

discuss money. Later Stafford

Patterson, according to

RodneyThomas, gave Rodney

Thomas the kilogram of

cocaine that he obtained from

the Dillards' house. And

finally, Rodney Thomas

testified that there was a sort

of agreement that Stafford

Patterson would supply

Rodney Thomas, Michael

Adkism, Herb Hill, and others
6

with crack cocaine.

Marcus Hooker

testified that he got his crack

from Rodney Thomas, that

Rodney Thomas told him that

the crack came fromPatterson,

that Patterson once offered

Marcus Hooker drugsin return

for jumping on someone. Herb

Hill testified that he got his

crack from Stafford Patterson

in order to resell it. And, by

the way, Marcus Hooker, is

one of the named coconspirators in the Indictment.

Herb Hill also testified that he

was with Patterson when

Patterson delivered crack to

Michael Adkism. He testified

that Patterson fronted Rodney

Thomas and Chris Burns with

crack. Finally, Clinton Thomas

testified that he had bought

crack cocaine from Stafford

Patterson, that he also bought

it from Michael Adkism, and

that Adkism said he got his

crack from Stafford Patterson.

This evidence provides an ample basis for the

jury to accept the government's theory of the

case. Patterson and Adkism point out

weaknesses in the testimony of these same

witnesses. For example, they emphasize that

Council, Jenkins, Hooker and Fisher denied

any agreement or network. The evidence,

however, allowed the jury to conclude that

Patterson conspired with Adkism, Thomas,

and others to distribute crack cocaine. The

jury also could have found a tacit, if not

explicit, agreement among the dealers to

supply each other when they ran short. The

argument that they acted independently must

fail.5

Patterson and Adkism rely heavily on

the lack of credibility of the co-conspirators

who testified against them. The argument

appears directed at the alleged illegality of the

testimony, whichwe alreadyhave rejected. To

the extent the defendants seek to impugn their

credibility for our sufficiency of the evidence

review, arguing their testimony “should be

discounted,” we disagree. The appellants had

an opportunity before the jury to raise

questions about the witnesses' credibility, and

they did just that by asking about the plea

agreements and prior records. The jury must

have resolved credibilitydeterminations, which

are theirs to make, in favor of the

government.6

Patterson also attacksthe testimony of

the officers who worked on the case,

emphasizing that not one of them provided

direct evidence linking him to the drug deals

that the officers witnessed. Yet, their

testimony substantiated the relationships

between other dealers and the existence of a

conspiracy. Once the government establishes

the conspiracy, it needs to provide only slight

credible evidence linking Patterson to it. The

testimony of numerous co-conspirators

implicating Patterson as the source of the

crack more than suffices to uphold his

conviction.

C.

The defendants style their third

argument as a variance between the

indictment, charging a single conspiracy, and

the proof at trial, establishing multiple

conspiracies, if any. They fail, however, to

provide any legal analysis. Their brief is

devoid of even a single citation to a variance

case, or any explanation of what a variance is.

Perhaps this is because what they

actually proffer is not a variance argument, but

 

5 Cf. Westbrook, 119 F.3d at 1190 (rejecting

argument that dealer acted independently because

evidence allowed inference of involvement in

conspiracy).

 

6

See United States v. Davis, 61 F.3d 291, 297

(5th Cir. 1995) (“It is well-settled that credibility

determinations are the sole province of the jury.”); see

also United States v. Payne, 99 F.3d 1273, 1278 (5th

Cir. 1996) (“[N]on-credibility is generally not a sound

basis for alleging sufficiency of the evidence; it is the

jury's function to determine credibility.”).
7

an elaboration of their challenge to the

sufficiency of the evidence. They expand on

the argument mentioned above that the

government failed to prove a single

conspiracy, and that the evidence supports

multiple conspiracies, if any. The essence of

the argument is that the dealers here acted

independently, without any of the

interdependence required of a single

conspiracy that links them together.

Regardless, we treat it as a variance argument

and reject the challenge.

To obtain reversal of a conviction

because of a variance between the indictment

and the proof at trial, the defendants must

establish (1) a variance between the indictment

and the proof at trial (2) that affected their

substantialrights. See United States v. Morris,

46 F.3d 410, 414 (5th Cir. 1995). The

analysis ofwhether a variance exists essentially

follows a sufficiency of the evidence

inquirySSwe must determine whether the

government proved a single conspiracyat trial.

The principal factors we examine when we

count conspiracies are (1) the existence of a

common goal, (2) the nature of the scheme,

and (3) the overlapping of the participants in

the various dealings. See id. at 415; United

States v. Maceo, 947 F.2d 1191, 1196 (5th

Cir. 1991). As with a sufficiency of the

evidence challenge, we affirmthe convictionof

a single conspiracy unless the evidence and all

reasonable inferences drawn therefrom,

examined in the light most favorable to the

verdict, preclude finding a single conspiracy

beyond a reasonable doubt. Morris, 46 F.3d

at 415.

If we find a variance, we still do not

reverse unless it affected the defendants'

substantial rights, i.e., prejudiced them. This

includes a failure to give adequate notice to

the defendants, and possible transference of

guilt from co-defendants. See id. at 417.

1.

The heart of the defendants' complaint

is that the government attempted and failed to

prove a “wheel conspiracy.” They emphasize

that “there was no interaction between the

supposed conspirators who formthe spokes of

the wheel.” As in United States v. Levine, 546

F.2d 658 (5th Cir. 1997), the case they cite,

the government may have established spokes,

but “the conspiracy lacks the rim of the wheel

to enclose the spokes.” Id. at 663 (internal

quotation omitted). Even if the dealers had a

common supplier, they did not interact with

each other; there was no interdependence.

The first factorSScommon

goalSSgenerallydoes not present a challenging

factor for the government. We have adopted

an expansive notion of a common purpose.

Morris, 46 F.3d at 415. Indeed, “the common

objectivestest mayhave become a merematter

of semantics.” United States v. Richerson,

833 F.2d 1147, 1153 (5th Cir. 1987). We

have held that the goal of selling cocaine for

profit meets the common goal requirement.

See Morris, 46 F.3d at 415; Maceo, 947 F.2d

at 1196. 

The defendantsrelyonUnited States v.

Glinton, 154 F.3d 1245 (11th Cir. 1998), in

which the court held that the government had

not proved one over-arching conspiracy

because all the defendants had in common was

their supplier, who furnished cocaine to

independent buyers. See id. at 1251. This

does not attack the common goalrequirement.

The court even recognized the “common goal,

to wit: profit from the sale of cocaine.” Id.

Rather, the Glinton court expressed concern

with the lack of “overlapping connection,” id.;

this we address in our second and third

factors.

Second, we must examine the nature of

the scheme. The government rightly points

out that we have moved away from such

artificial constructs as “wheel” conspiracies.7

Rather, we take a more functional approach.

We must conclude that a jury could find the

nature of the scheme supports a single

 

7

“Conspiracies are as complex as the

versatility of human nature and federal protection

against them is not to be measured by spokes, hubs,

wheels, rims, chains or any one or all of today's galaxy

of mechanical molecular or atomic forms.” United

States v. Perez, 489 F.2d 51, 59 n.11 (5th Cir. 1973).
8

conspiracy if “the activities of one aspect of

the scheme are necessary or advantageous to

the success of another aspect of the scheme or

to the overallsuccess of the venture.” Maceo,

947 F.2d at 1197 (quoting United States v.

DeVarona, 872 F.2d 114, 118 (5th Cir.

1989)).

Patterson could not have kept

supplying if the dealers did not distribute the

cocaine base; the distributors could not have

sold cocaine if Patterson did not supply it; and

neither Patterson nor the next-l evel

distributors could have sold the cocaine iftheir

buyers did not purchase it.8 The jury could

have inferred that the tacit agreement among

the dealers to borrow crack from each other

when needed was an essential part of this

distribution network, and necessary to keep it

functioning. Furthermore, the myriad channels

of distribution for Patterson certainly were

advantageous to the overall scheme.

Third, we address whether the

participants overlapped. Patterson and

Adkism adamantly insist that the dealers acted

independently of each other. But “[a] single

conspiracy does not require every member to

participate in every transaction.” DeVarona,

872 F.2d at 119. In fact, a pyramid scheme,

with a common supplier on top, is a common

form of conspiracy of which we have

approved. See Morris, 46 F.3d at 416;

Maceo, 947 F.2d at 1197. Substantial

evidence supports that Patterson provided

crack cocaine to numerous dealers. Here, we

have the added interdependence and overlap of

the various dealers tacitly agreeing to supply

each other with cocaine base when they ran

short and needed some. True, some of the

conspirators may have acted independently at

times; but that does not preclude the jury's

finding of single conspiracy.9 We find no

variance between the indictment and the proof

at trial.

2.

Even if we did find a variance,

Patterson and Adkism have not even

attempted to demonstrate prejudice from it.

Nor could they. The indictment itself made

clear the scheme on which the government

relied, providing adequate notice. The

testimony the defendants elicited from coconspirators that they acted independently

demonstrates that the defendants knew the

government's theory and defended against it

accordingly.

They make no attempt, and would not

be able, to demonstrate prejudice from

improper transference of guilt. “[W]here the

indictment alleges a single conspiracy and the

evidence established each defendant's

participation in at least one conspiracy a

defendant's substantialrights are affected only

if the defendant can establish reversible error

under general principles of joinder and

severance.” Morris, 46 F.3d at 417 (quoting

United States v. Jensen, 41 F.3d 946, 956 (5th

Cir. 1994)). The government established at

least one conspiracy involving each defendant,

with Patterson supplying crack cocaine to

some other distributor who then either sold it

or distributed it to yet another dealer. Thus,

the defendants need to show reversible error

under joinder and severance principlesSSa

difficult task, given the court's discretion, even

when briefed and argued. We find no

prejudice.

D.

 

8 Cf. Morris, 46 F.3d at 416 (“If the sellers

discontinued selling, there would be no cocaine for . . .

the purchasers to buy . . . . Likewise, the distribution

effort is critical to the success of the suppliers.”).

 

9

See United States v. Hass, 150 F.3d 443,

(continued...)

(...continued)

448 (5th Cir. 1998) (“While . . . some of the participants

in the conspiracy may have acted independently at times,

this does not serve a fatal blow to the overarching

conspiracy.”).
9

Patterson contends that there is

insufficient evidence to support his conviction

for possession of crack cocaine with intent to

distribute, in violation of 21 U.S.C. § 841, and

aiding and abetting the same, pursuant to

18 U.S.C. § 2. As explained in more detail in

part III.B.1., supra, when defendants fail to

renew their motion for a judgment of acquittal

at the end of their case, we review a

sufficiency of the evidence challenge only for

manifest miscarriage ofjustice. See Inocencio,

40 F.3d at 724.

1.

To obtain a conviction of possession

with intent to distribute, the government must

prove that the defendant (1) knowingly

(2) possessed a controlled substance (3) with

the intent to distribute it.10 To establish that a

defendant aided and abetted an offense, the

government must establish that he associated

with the criminal activity, participated in it,

and acted to help it succeed. Id. Patterson

does not challenge any particular element of

the offenses, but rather raises a general

challenge to whether the evidence links him to

the crime.

2.

The government presented sufficient

evidence supporting its theory that Patterson

delivered nearly a kilo of crack to Thomas,

who in turn sold it to Crawford and Block.

This suffices to establish, at the least, aiding

and abetting; indeed, the transactionwould not

have been possible if Patterson had not

supplied the crack. 

That the deal took place is well

established. Thomas testified that he obtained

the kilo from Patterson, as he always did.

Hooker testified that Patterson and Thomas

met before the deal and that he saw Patterson

sitting in his car at the Razzmatazz while the

deal took place. Patterson told Hooker that

Thomas would returnshortly;fromPatterson's

apparent knowledge of when Thomas would

return and the fact that he was sitting in his

car, the jury could infer that Patterson knew

what Thomas was doing and was waiting for

the proceeds of the sale. The record is not

devoid of evidence, and evidence supporting

each element is far from tenuous.

E.

Patterson also argues that the district

court erred in admitting an alleged hearsay

statement of a co-conspirator pursuant to FED.

R.EVID. 801(d)(2)(E). The prosecution asked

Hooker who supplied Thomas with drugs.

The defense objected. The court required

evidence supporting the co-conspirator

hearsay exception before it would allow the

testimony. 

After Thomas had testified regarding a

conspiracy, the court held that a conspiracy

existed and that the statements Thomas made

to Hooker were in furtherance thereof.

Hooker then testified that Thomas told him

Patterson was his supplier and that Thomas

always had plenty of dope after Patterson

visited. He also relayed Thomas's statement

that he was going to ask Patterson the price

for a kilo deal, and that Thomas wanted

Hooker to stage a hit to make Patterson think

Thomas had been robbed of the cash.

1.

Rule 801(d)(2)(E) provides that a

statement made by a co-conspirator during the

course of, and in furtherance of, a conspiracy

is not hearsay and may be admitted. See FED.

R. EVID. 801(d)(2)(E); United States v. ElZoubi, 993 F.2d 442, 446 (5th Cir. 1993).

Before admitting the testimony, “the court

must determine by a preponderance of the

evidence (1) that there was a conspiracy

involving the declarant and the [defendant],

and (2) that the statement was made 'during

the course and in furtherance of the

conspiracy.'” Burton, 126 F.3d at 671

(quoting Bourjaily v. United States, 483 U.S.

171, 175 (1987)). We review evidentiary

 

10

See United States v. Delagarza-Villarreal,

141 F.3d 133, 140 (5th Cir. 1997); United States v.

Gonzales, 121 F.3d 928, 936 (5th Cir. 1997), cert.

denied, 118 S.Ct. 726, and cert. denied, 118 S. Ct. 1084

(1998).
10

rulings for abuse of discretion.11 The court's

findings that a statement was made by a coconspirator, during and in furtherance of the

conspiracy, are findings of fact that we review

for clear error.12

The record reveals that our review

imposes an even greater burden on the

appellants. When a party objects to the

admission of evidence, the objection must be

specific. “A sufficiently specific objection is

necessary at trial so that testimony could be

taken, and argument received, on that issue;

and so that the district court would have dealt

with it.” Burton, 126 F.3d at 671.

In the context of evidence the

government proffers under FED. R. EVID.

801(d)(2)(E), a general objection to the

statement as hearsay, or as not falling under

that rule, does not suffice to preserve the error

of the statement not furthering the conspiracy

for appeal. See id. at 672-73. Rule

801(d)(2)(E) contains four possible bases for

objection: (1) that the declarant was not a coconspirator, (2) that the party against whom

the statement was offered was not a coconspirator, (3) that the statement was not

made in the course of the conspiracy, and

(4) that the statement was not in furtherance of

the conspiracy. Id. at 673.

The defendants made the general

objection, “That's hearsay.” They did not

specifically raise the “in furtherance of” issue,

and the record was not developed on that

particular point; we review for plain error. To

reverse, we must find (1) an error (2) that is

plain and (3) that affectssubstantialrights, i.e.,

affected the outcome of the trial, and (4) even

if these are true, we exercise our discretion to

correct the error only if it seriously affects the

fairness, integrity, or public reputation of

judicial proceedings. See id. at 674; United

States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc).

2.

Patterson argues that the statement

Thomas made to Hooker implicating him as

the supplier of the kilo was not made in

furtherance of the conspiracy, but “in

furtherance of a scheme directly opposite” to

the conspiracy, i.e., to induce Hooker to help

Thomas rob the supplier.13 The government

replies that the conspiracy's object was for the

conspirators, including Patterson, Adkism,

Hooker and Thomas, to sell crack for a profit.

It does not matter who profited from the sale

or that the conspirators may have turned on

each other.

“A statement is made in furtherance of

the conspiracy if it advances the ultimate

objectives of the conspiracy.”14 We frequently

have stated that “'in furtherance of a

conspiracy' is not to be construed too strictly

lest the purpose of the exception be

defeated.”15 And we consistently have

shunned an overly literal interpretation of the

phrase. See Burton, 126 F.3d at 674;

Broussard, 80 F.3d at 1039.

We have found a statement to be in

 

11

See United States v. Williams, 132 F.3d

1055, 1059 (5th Cir. 1998); United States v. Fike,

82 F.3d 1315, 1329 (5th Cir. 1996), cert. denied,

520 U.S. 1131 (1997).

 

12

See United States v. Broussard, 80 F.3d

1025, 1039 (5th Cir. 1996); United States v. Stephens,

964 F.2d 424, 434 (5th Cir. 1992).

 

13 Hooker also testified more generally that

he frequently received crack from Thomas, that

Thomas told him Patterson was his supplier, and that

Thomas always had plenty of crack cocaine after

Patterson visited. On appeal, the parties focus on the

statementsrelated to the kilo deal. They do not present

arguments related to this general testimony from

earlier events, and we find no error in admitting it.

 

14 United States v. Snyder, 930 F.2d 1090,

1095 (5th Cir. 1991) (citing United States v. Lechuga,

888 F.2d 1472, 1479 (5th Cir. 1989)); see also

ElZoubi, 993 F.2d at 446 (finding statement not in

furtherance of conspiracy because statement did not

make conspiracy “more likely to succeed”).

 

15 Broussard, 80 F.3d at 1039 (citing

Lechuga, 888 F.2d at 1480); see also, e.g., Burton, 126

F.3d at 674; Stephens, 964 F.2d at 434; Snyder, 930 F.2d

at 1095.
11

furtherance of a conspiracy when it identifies

the role of a co-conspirator to someone who

may need to know that role, or to allay

suspicions or concerns.16 Similarly, an

identification furthers the conspiracy if it is

puffing, boasts, or is other conversation

designed to obtain the confidence of someone

who is a member of, or dealing with, the

conspiracy. See United States v. Johnson, 872

F.2d 612, 623 (5th Cir. 1989); Miller, 664

F.2d at 98. Statements also further a

conspiracy when they contain information that

facilitates the conspiracy's operations, see

Snyder, 930 F.2d at 1095, protect and conceal

a conspiracy, see Broussard, 80 F.3d at 1039,

or are intended to affect future dealings

between the parties, see United States v.

Patton, 594 F.2d 444, 447 (5th Cir. 1979).

3.

The district court plainly erred in

admitting Hooker's testimony related to the

source of the kilo for the final deal.17 The

relevant conspiracy on which the government

relies is the indicted conspiracySSthe one

between Patterson and others to bring crack

cocaine into the city and sell it at a profit

through various mid-level dealers.18 In

context, the identification of Patterson did

nothing to advance that conspiracy. It did not

provide information necessary or even

incidental to the conspiracy's functioning. It

was not meant to allay suspicions or promote

confidence in the conspiracy.

Thomas identified Patterson as his

supplier as part of his own scheme to rob

Patterson. It simply cannot be that the

statement furthered the conspiracy to

distribute crack cocaine. It may be, as the

government contends, that “[i]t mattered not

who profited from the sale of illegal drugs or

that there was no honor among drug dealers.”

But the statement advanced a scheme that had

an objective opposed to, or at least in tension

with, the usual conspiracy by which Patterson

distributed drugs through mid-level dealers.19

4.

Because the court plainly erred in

finding the statement in furtherance of the

conspiracy, and hence abused its discretion in

admitting the testimony, we must address the

third step of plain error review: whether the

error affected substantial rights. We look for

prejudice to the defendant by performing a

harmless error analysis, as we would for any

erroneous evidentiary admission. See ElZoubi, 993 F.2d at 446; Means, 695 F.2d at

818. We find the admission of hearsay

evidence harmless if, after considering the

other evidence in the case, we decide it did not

actually contribute to, i.e., have a substantial

impact on, the verdict. See El-Zoubi,

 

16

See Lechuga, 888 F.2d at 1472; United

States v. Lindell, 881 F.2d 1313, 1320 (5th Cir. 1989);

United States v. Magee, 821 F.2d 234, 244 (5th Cir.

1987); United States v. Miller, 664 F.2d 94, 98 (5th Cir.

1981); United States v. James, 510 F.2d 546, 549-50

(5th Cir. 1975).

 

17

See United States v. Olano, 507 U.S. 725,

734 (1993) (holding that an error is plain if it is

“clear” or “obvious” under current law); Calverley,

37 F.3d at 162-64 (same).

 

18 This need not be the case. The

government can relyon a different conspiracy between

the declarant and the defendant from the one for which

the defendant is indicted. See United States v. NarvizGuerra, 148 F.3d 530, 536 n.2 (5th Cir.), cert. denied,

119 S. Ct. 601 (1998); United States v. Arce, 997 F.2d

1123, 1128 (5th Cir. 1993). But, as will be explained,

the only conspiracy that the identification of Patterson

as the supplier might further is a conspiracy between

Thomas and Hook to rob Patterson. Patterson is not a

member of that conspiracySShe is the victim; the

statement did not further a conspiracy involving

(continued...)

(...continued)

Patterson.

 

19 Cf. El-Zoubi, 993 F.2d 442 (holding

statement not in furtherance of conspiracy because

inference could not be made that declarant thought

conspiracy would be more likely to succeed by

identifying the co-conspirator); United States v.

McConnell, 988 F.2d 530, 533 (5th Cir. 1993)

(holding court abused discretion in admitting

statement because government laid no predicate that

statement advanced conspiracy's objectives); United

States v. Means, 695 F.2d 811, 818 (5th Cir. 1983)

(holding statement inadmissible as “mere idle chatter”

because record in no way indicated it was intended to

further the scheme).
12

993 F.2d at 446.

With respect to the conspiracy count,

ample evidence supports Patterson'slink to the

conspiracy, and the hearsay's admission is

harmless. Patterson's possession with intent to

distribute count presents a closer case. The

only other direct evidence that he supplied the

crack is Thomas's testimony. Thomas faces

credibility problems, because he is testifying

under a plea bargain. It is possible that the

jury would not have been as quick to believe

him if Hooker had not corroborated the

testimony.

Nonetheless, Hooker's testimony is

cumulative of Thomas's. “As long as it is not

factually insubstantial or incredible, the

uncorroborated testimony of a co-conspirator,

even one who has chosen to cooperate with

the government in exchange for nonprosecution or leni ency, may be

constitutionallysufficient evidence to convict.”

Westbrook, 119 F.3d at 1190. In addition,

Hooker's testimony that Patterson had

supplied Thomas on other occasions, that

Patterson had met with Thomas earlier that

day, and that he saw Patterson, apparently

waiting in his car, while the deal was going

down and that Patterson knew when Thomas

would return, implying he knew of his

whereabouts,substantiateThomas'stestimony

that he received the kilo from Patterson. The

error is harmless.20

F.

The defendants contend that the

district court abused its discretion in admitting

a tape recording of a drug transaction (the sale

of a Big 8 among Block, Green, and John

Fisher) because the tape bears no relevance to

the defendants and, even if relevant, it should

have been excluded under FED. R. EVID. 403.

We review evidentiary decisions for abuse of

discretion. See Williams, 132 F.3d at 1059;

Fike, 82 F.3d at 1329. Because the defense

objected only on relevance grounds, not on the

ground urged on appeal, we review only for

plain error. See United States v. Cantu, 167

F.3d 198, 204 (5th Cir. 1999).21

The court did not abuse its discretion

in finding the evidence relevant. Rule 401,

FED. R. EVID., provides that evidence is

relevant if it has “any tendency to make the

existence of any fact that is of consequence to

the determination of the action more probable

. . . than it would be without the evidence.”

The tape recording revealed a transaction that

the grand jury included as Overt Act No. 29 of

its conspiracy charge. That makes the tape

relevant to establishing the conspiracyinwhich

Adkism and Patterson were charged with

participating.

Nor did the district court plainly err in

not excluding the tape pursuant to rule 403,

which allows the court to exclude relevant

evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury

. . . .” As we have explained,

 

20 Even if we found the error prejudiced the

defendants, we would not reverse, for the error will not

seriously affect the fairness, integrity, or public

reputation of judicial proceedings. Although the

harmless error analysis may be close, that closeness

weighs against reversing under this fourth plain-error

step. In addition, Patterson, as a member of the

conspiracy, could h ave been convicted of possession

with intent to distribute under the Pinkerton doctrine.

See United States v. Narviz-Guerra, 148 F.3d 530, 535

(5th Cir. 1998) (“A party to a conspiracy may be held

responsible for a substantive offense that a coconspirator commits in furtherance of the conspiracy

even if the party did not participate in or have any

knowledge of that offense. Pinkerton v. United States,

328 U.S. 640, 647 [] (1946). Thus, once the

conspiracy and the defendant's knowing participation

therein is [sic] proved beyond a reasonable doubt, a

(continued...)

(...continued)

defendant is guilty of the substantive acts his partners

committed in furtherance of the conspiracy.”). This,

too, weighs against finding the error affected the

fairness, integrity, or public reputation of judicial

proceedings.

 

21 Accord United States v. Johnson, 722

F.2d 407, 409 (8th Cir. 1983) (holding that, because

defendant had objected to evidence below only on

grounds of relevance, court would review hearsay

objection for plain error).
13

Relevant evidence isinherently

prejudicial; but it is only unfair

prejudice, substanti ally

outweighing probative value,

which permits exclusion of

relevant matter under Rule

403. Unless trials are to be

conducted on scenarios, on

unreal facts tailored and

sanitized for the occasion, the

application of Rule 403 must

be cautious and sparing.

United States v. Hall, 152 F.3d 381, 401 (5th

Cir. 1998) (quoting United States v. McRae,

593 F.2d 700, 707 (5th Cir. 1979)).

The defendants offer no reason,

beyond bare assertion, why this evidence

should be excluded under rule 403. The tape,

reflecting two co-conspirators negotiating with

Block, is highly probative of the existence of a

conspiracy. Furthermore, Block testified that

he used thistaped transaction as a step toward

the next purchaseSSthe kilo deal. Green, who

appears on the tape, then set up the kilo deal

through Thomas; and through Thomas we

learn that he was supplied by Patterson. 

Nothing appears unfairly prejudicial,

misleading, or confusing. The defendants'

generic claim under rule 403 must fail, and the

district court did not plainly err in admitting

the evidence.

AFFIRMED.