* 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this opinion should not be published and is not precedent except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. 96-60563

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TYRONE RILEY, also known as “Tyron”;

REGINALD FELIPE WARDEN, also known as “Reggie”

Defendants-Appellants.

 

Appeal from the United States District Court

For the Southern District of Mississippi

 

 (3:95-CR-60BN-19)

(March 13, 1998

Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

I.

Charles Ellis Warden, Jr., known as June Bug, headed a cocaine

distribution organization in Jackson, Mississippi, in the early to

mid 1990s. His brother, Reginald Felipe Warden, known as Reggie,
2

and one of the defendants in this case, distributed cocaine for

him. Tyrone Riley, known as Tyron, from Memphis, Tennessee, is the

other defendant, and he was one of the organization’s suppliers.

Warden and Riley were convicted by a jury of conspiring to

distribute cocaine, crack cocaine and marijuana. 

II.

On appeal, Warden raises two issues. First, he contends that

the proof at trial varied from the indictment and hence the

indictment was constructively amended. We review this issue de

novo. U.S. v. Farmigoni, 934 F.2d 63, 65 (5th Cir. 1991), cert.

denied, 502 U.S. 1090 (1992). Warden did not present this issue to

the trial court. Therefore, the plain error standard applies.

U.S. v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994), cert.

denied, 513 U.S. 1196 (1995); Fed. R. Crim. P. 52(b). Plain error

is error that is obvious, clear or readily apparent and must affect

the defendant’s substantial rights. Id. at 163-64.

A constructive amendment of the indictment occurs when the

jury is permitted to convict based on facts that effectively modify

an essential element of the offense charged. U.S. v. Young, 730

F.2d 221, 223 (5th Cir. 1984). When the indictment charges a

violation of a statute in general terms, proof of acts of the kind

described, although not specifically mentioned in the indictment,
3

does not constructively amend it. U.S. v. Malatesta, 583 F.2d 748,

756 (5th Cir. 1978), cert. denied, 444 U.S. 846 (1979).

Four government witnesses -- Paul Webb, Michael Westin,

Richard Carroll and Marcus George, who had not testified before the

grand jury, testified at trial against Warden. Warden contends

that the testimony of these four witnesses amounts to unrelated

conduct which was not alleged in the indictment. We find that the

testimony of these witnesses fall within the allegations of the

indictment and overt acts involving Paul Webb are mentioned in the

indictment. Their testimony established the existence of the

conspiracy that Warden was charged with. This case is similar to

U.S. v. Soudan, 812 F.2d 920 (5th Cir. 1986), cert. denied, 481

U.S. 1052 (1987), in which the court’s charge stayed within the

scope of the indictment and allowed the jury to find the defendant

criminally culpable but did not vary the charges in the indictment.

Id. at 929. 

Moreover, in U.S. v. McKinney, 53 F.3d 664 (5th Cir.), cert.

denied, 116 S.Ct. 261 (1995), this court held that a conviction

will not be reversed for a variance between the indictment and the

proof unless the evidence offered at trial by the government varied

from that alleged in the indictment and the variance prejudiced the

defendant’s substantial rights. Id. at 672. Assuming that there

was a variance in the indictment, there is no evidence that any

substantial rights of Warden were prejudiced since he was given a
4

full opportunity to interview the government witnesses and prepare

for trial.

Second, Warden contends that the trial court abused its

discretion in allowing the government witnesses to invoke the Fifth

Amendment in response to questions regarding other drug deals. We

review restrictions on the scope of cross-examination and whether

the Fifth Amendment was properly invoked for abuse of discretion.

U.S. v. Payne, 99 F.3d 1273, 1280 (5th Cir. 1996). “The relevant

inquiry is whether the jury had sufficient information to appraise

the bias and motives of the witness.” U.S. v. Tansley, 986 F.2d

880, 886 (5th Cir. 1993) (citations omitted).

Warden contends that government witnesses Richard Carroll and

Paul Webb used their Fifth Amendment privilege to pick and choose

those questions they wanted to answer, avoided answering questions

going to their credibility on cross-examination, and thus curtailed

Warden’s right of confrontation.

The evidence on record shows that the questioning, although

limited to only the drug deals in this case, was sufficient to

allow a jury to appraise Webb and Carroll’s credibility as

witnesses. U.S. v. Rocha, 916 F.2d 219, 242 (5th Cir. 1990), cert.

denied, 500 U.S. 934 (1991) (upholding refusal to permit crossexamination related to tax evasion). The trial court did not abuse

its discretion in allowing government witnesses to invoke the Fifth

Amendment in response to questions regarding other drug deals.
5

III.

Riley raises two other issues on appeal. First, Riley

contends that the evidence was insufficient to support his

conviction for conspiracy to possess with intent to distribute

cocaine. In judging challenges to the sufficiency of the evidence,

we must interpret the evidence in light most favorable to the

government. U.S. v. Stephens, 779 F.2d 232, 235 (5th Cir. 1985).

To sustain a conviction for a drug conspiracy, the government

must show the following: (a) the existence of an agreement with

intent to distribute; (b) defendant’s knowledge of the agreement;

and (c) defendant’s voluntary participation in the agreement. U.S.

v. Alvarado, 898 F.2d 987, 992 (5th Cir. 1990).

Riley contends that he was merely in a buyer-seller

relationship with June Bug, and he did not believe he was supplying

a conspirator -- all he knew was that he was selling cocaine to

June Bug.

The principal evidence against Riley was the testimony of

Kimberly Logan, a banker/treasurer for June Bug’s organization.

Logan testified that Riley dealt with June Bug and his cohorts over

an extended period of time and discussed prices and availability of

cocaine. Her testimony was corroborated by tapes that were

introduced into evidence. Issues related to her credibility, the

weight of the evidence and conflicts in evidence are matters for

the jury. U.S. v. Ortega-Chavez, 682 F.2d 1086, 1091 (5th Cir.

1982). We have previously held that a buyer-seller relationship
6

exists where there is no proof that the purchaser intended anything

more than personal use. U.S. v. Thomas, 12 F.3d 1350, 1365 (5th

Cir.), cert. denied, 511 U.S. 1095 (1994). On the contrary, here

the evidence sufficiently establishes extensive drug dealing

involving substantial amounts of cocaine over a period of time thus

proving a conspiracy involving Riley and others, and not mere

personal use. 

Second, Riley contends that the trial court erred in

sentencing Riley by assessing him responsibility for nine kilograms

of cocaine and in denying him a reduction for acceptance of

responsibility.

The district court’s findings about the quantity of drugs

involved are factual findings reviewed under the clearly erroneous

standard. U.S. v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989).

Kimberly Logan testified that she made around 12 trips to

Memphis and came back with one-half kilo to three kilos of cocaine

on each trip. On cross-examination she said she may have made 5 to

12 trips to Memphis. The sentencing judge calculated 5 kilos of

cocaine based on this testimony. The court then attributed another

4 kilos to Riley based on a conversation with Warden caught on tape

in which he discusses possessing that amount of cocaine in

negotiating a sale. The sentencing guidelines permit counting

amounts under negotiation as relevant conduct. See U.S. Sentencing

Guidelines Manual §2D1.4, Appl. Note 1 (1991). Thus, the district

court’s findings limited its calculation to amounts of cocaine
7

directly attributable to Riley and its findings are not clearly

erroneous.

Riley also contends that the district court erred in denying

him an acceptance of responsibility adjustment. He maintains that

he went to trial not because he denied selling cocaine but because

he denied the amount that he allegedly sold.

After finding that Riley was personally responsible for

selling 9 kilos of cocaine and that he was a major player in the

conspiracy, the trial judge noted that Riley wanted an acceptance

of responsibility adjustment because he had accepted responsibility

for selling “two quarters of a kilogram” of cocaine. The trial

judge noted that Riley contested his guilt all the way through and

went to trial. It may be difficult for a defendant to receive an

acceptance of responsibility reduction when he refuses to plead

guilty and puts the government to its proof by going to trial.

U.S. v. Gordon, 876 F.2d 1121, 1127 (5th Cir. 1989). We are

persuaded that the trial court’s refusal to give Riley a two-level

reduction is adequately supported by the record.

AFFIRMED.