United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 95-4136

___________ United States of America, *
* Plaintiff - Appellee, *
*
v. *
* Thomas Ervin Payne, * * Defendant - Appellant. *
*
*

___________ Appeals from th e United
States District Court for the No. 95-4195 Eastern District of Missouri.

___________

United States of America, *
* Plaintiff - Appellee, *
*
v. *
* Christopher Foster, * * Defendant - Appellant. *
*

___________

## The Honorable George F. Gunn, United States District Judge for the Eastern 1 

## District of Missouri.

-2- Submitted: January 16, 1997 Filed: July 10, 1997

___________ Before LOKEN, JOHN R. GIBSON, and MORRIS S. ARNOLD, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

A jury convicted Christopher Foster and Thomas Ervin Payne o f conspiracy to distrib ute and possession with intent to distribute cocaine in violat ion of 21 U.S.C. §§ 841(a)(1) and 846. Foster appeals arguin g that: (1) the district court erred in denying his motion to suppres s 1 evidence seized without a warrant; (2) there was no probable cause for his

warran tless arrest or for the seizure of his bag; (3) he did no t voluntarily consent to the search of his residences; (4) the district cour t erred in admitting into evidence the testimony of a government-pai d informant; (5) the district court erred in limiting the time allowed for closi ng argument; and (6) the district court erred in finding hi m responsible for the distribution of more than tw enty kilograms of cocaine. Payne also appeals, arguing that the district court erred: (1) in no t suppressing evidence seized from his automobile and hotel room; (2) i n proc eeding on his indictment when the government unnecessarily delaye d presentin g the charge to the grand jury in violation of Federal Rule o f Criminal Procedure 48(b); (3) in denying his motion to sever his trial fro m Foster's trial; and ( 4) by enhancing his sentence for being a leader of a criminal activity that involved five or more participants. Payne als o
ass erts that the government violated his due process rights because th e government knowingly introduced and failed to co rrect perjurious testimony from government witnesses. We affirm.

### -3- Foster first came under investigation when he met with Carlo s Garavito, a government-paid informant, on December 9, 1993 to discuss mone y laundering. Law enforcement agents conducted su rveillance of the meeting, and continued doing s o after the meeting. Foster never gave Garavito any money to launder.

On December 15, 1993, law enforcement agents followed Foster fr om his home to a hotel near the Los Angeles airport where he picked up a man late r identified as David Woods. Foster and Woods drove to a car repair shop, which Fos ter entered. After Foster left the shop, Woods and Foster go t into a second car and sat in it for a short time. Foster then got out of the car and Woods dro ve away in it. Law enforcement agents stopped Woods and he consented to a search of the car, which was registered to Nicol e Tait. The search of Woods's car revealed an empty secret compartment in the trunk . A narcotic trained dog positively alerted to the secre t compartment in the tr unk, indicating the compartment had a narcotic odor.

On Janu ary 11, 1994, law enforcement agents saw Foster place a bo x out with the trash for curbside collection. After Foster left, a la w enforcem ent agent removed the box and took it to the Azusa Polic e Department where a trained police dog indicated the box had a narcotic odo r at its bottom.

On February 15, 1994 law enforcement agents followed Foster to a condominium complex. An agent testified before the magistrate that Foster engage d in counter-surveillance driving on his way to the condominiu m complex. Upon arriving at the complex, Foster took an empty green softsided suitcase from t he trunk of his car and carried it into the complex. Foster left the building a short time later with out the green suitcase and drove to a nearby res taurant where a man later identified as Thomas Payne met him. Foster left his car at the restaurant and drove back to th e complex with Payne in Payne's red Thunderbird.

### -4- Upon arrival at the complex, Foster got out of the car and walked to

a ne arby gate. Another man came to the gate and handed Foster a gree n soft-sided suitcase. The suitcase now appeared to be heavy based upon the

manner in which the men carried the suitcase. Foster walked back to the trunk of the car where Payne met him. Payne too k the suitcase from Foster and placed it in the trunk. Payne then departed in the Thunderbird, while Foster remained at the complex.

Law enforcement agents followed Payne onto the freeway and even tually stop ped Payne's car. Officers searched the car and seized the gree n suitcase, which contained approximately twenty kilograms of cocaine. Afte r arresting Payne law enforcement agents searched his hotel room, but n o evidence seized from the hotel room was introduced at trial.

After Payne's arrest, agents continued surveillance on Foster. O n February 17, 1994, tw o days after Payne's arrest, agents saw Foster leave his r esidence with a duffle bag that he placed in the trunk of his car

. Agents followed him for a short time, then stopped him and asked fo r permission to search his car. Before the actual search, Foster told agent s that t he money in his trunk was his, and not money from narcoti c transactions. A sear ch indicated that the duffle bag contained $360,180. Agents then took Foster to the Santa Monica Police Station, where he signe d consent forms for the search of his car and his residences. The agent s found $19,333, a money counter, and certain docu ments during the search of Foster's residence on Ocean Avenue.

Several others were also involved in the conspiracy. Raymond Tohill served as a courier under Payne's direction. Payne also directed Marvin Bonds in some aspects of this conspiracy. Leroy Eason testified at trial that he loaned Payne $40,000, and that he made four trips to Los Angeles during which he obtained a total of forty-six kilograms of cocaine.

### -5- Fos ter and Payne filed pretrial motions to suppress. After a hearing, the magistrate judge filed a Report and Recommendations, that the district court adopted, denying the motions to s uppress and Payne's motion to seve r his trial. A jury convicted Payne and Foster of conspiracy t o distribute and possession with intent to distrib ute cocaine. The district court sent enced Payne to 324 months of imprisonment and Foster to 30 0 months of imprisonment. The district court's ruling denying the motions to suppress and motion to sever, as well as issues related to the trial an d the sentencing hearing, are challenged in this appeal.

I.

Foster fi rst argues that the district court erred in its conclusion that Foster did not have standing to challenge either the search of the ca r driven by Woods, or the search and seizure of the suitcase found in Payne’ s
car. We review factual determinations related to a standing issue under

a clear ly erroneous standard, but review de novo the district court’ s determination to deny a motion to suppress. See United States v. Gomez , 16 F.3d 254, 256 (8th Cir. 1994).

A def endant can argue for the suppression of evidence gathered i n violation of the Fourth Amendment “only if that defendant demonstrates tha t his Fou rth Amendment rights were violated by the challenged search o r seizure.” United Sta tes v. Padilla, 508 U.S. 77, 81 (1993) (per curiam). Fos ter has the burden to show that he had a legitimate expectation o f privacy in the car driven by Woods and in the su itcase seized from Payne's trunk. See Gomez , 16 F.3d at 256. If Foster does not prove a sufficientl y close connection to W oods’s car or the suitcase in Payne’s trunk, then he has no standing to argue that the police searched or seized the item s illegally. See id. We previously have held that factors relevant to the determination of standing include:

owners hip, possession and/or control of the area searched o r item seized; historical use of the property or item ; ability to regulate access; the

### -6- totali ty of the circumstances surrounding the search; th e existe nce or nonexistence of a subjective anticipation o f privacy; and the objective reasonableness of the ex pectation of privacy considering the specific facts of the case.

Id. (citing United St ates v. Sanchez , 943 F.2d 110, 113 (1st Cir. 1991)).

There is no coconspirator exception to the standing rule. Se e Padilla , 508 U.S. at 82. Foster himself must sa tisfy the test we laid out in Gomez for each search.

Here, Foster did no more than sit in a car outside an auto repai r shop in which Woods later drove away. Foster do es not assert ownership of the car. Indeed, the car was registered to Nicole Tait. Further, Foster presented no evidence that indicated he had ever possessed the car or had driven it. That Fost er sat in the car with Woods for a short time before Woo ds drove it away, does not convince us that the district court wa s clearl y erroneous in its factual determination that Foster had no t established possessio n or control of the car. The district court did not

err in adopting the magistrate's recommendation that Foster had n o legitimate expectation of privacy in the car dri ven by Woods and therefore that Foster has no st anding to challenge the search of the vehicle driven by Woods. See Gomez , 16 F.3d at 256.

Similarly, the district court did no t err in holding that Foster had no legitimate expectation of privacy in the suit case found in Payne’s car. The distr ict court found that Foster only possessed the bag for a shor t time until he turned the suitcase over to someone at the condominiu m complex. Later, Foster retrieved the suitcase, and immediately gave it to Payne, who then drove away with it.

Foster presented no evidence that he owned the suitcase, ha d historical use of the suitcase, or had the ability to regulate access to the suitc ase, as the suitcase was only zipped shut and had no lock

. Finally, no evidence in the record indicates that the suitcase had any typ e of identification tags indicating that the suitcase belonged to

### -7-

Foster. Foster’s temporary possession of the suitcase does not satisfy th e Gomez factors, and the district court did not err in holding that Foster does not have standing to challenge the search and seizure of the suitcase

.

II.

Payne and Foster each argue that the district court erred in no t suppressing evidence found in their cars. We first address Payne' s arguments. Payne arg ues that the district court erred in finding that he consented to the sear ch of his car, and in the alternative that if he did so, his prior illegal arrest vitiated his consent. Finally, Payne argues that e ven if his arrest was not illegal, his assumed consent was no t voluntary.

Police may search a car without a warrant if they have probable cause to believe that the car contains contraband or evidence. See Chambers v

. Maron ey , 399 U.S. 42, 51 (1970); C arroll v. United States , 267 U.S. 132, 155-5 6 (1925). In such circumstances, the police may search every part of the ca r and its contents that may conceal the object of the search. See Californi a
v. Acevedo , 500 U.S. 565, 573-76 (1991); United States v. Ross , 456 U.S. 798, 825 (1982). If probable cause exists to believe a container in the trunk of a car contai ns contraband, the container may be searched without a warrant. See Acevedo , 500 U.S. at 573-76.
The district court accepted the magi strate's conclusion that because law enforcement agents had probable cause to believe the suitcase i n Payne's Thunderbird contained contraband, the ag ents were entitled to stop th e car and search the suitcase. Probable cause requires "only a probab ility or substantial chance of criminal activity, not an actua l showing of such activity." Illinois v. Gates , 462 U.S. 213, 243-44 n.13 (1983). Probable cause to search exists "where the known facts an d circumstances are sufficient to warrant a man of reasonable prudence in th e belief that contraban d or evidence of a crime will be found." Ornelas v. United States , 116 S. Ct. 1657, 1661 (1996). We must consider the events leading up to the search and then decide whether

### -8-

these historical facts, viewed from the standpoint of an objectivel y
reasona ble police officer, amount to reasonable suspicion or probabl e
cause. See id. at 1661-62. We make an indepen dent de novo review of the ultimate question of probable cause to make a wa rrantless search. See id. at 1663. We review f or clear error, however, findings of historical fact and give "due weight to inferences drawn from those facts" by local la w enforcement officers. See id.

Immedi ately before stopping Payne, law enforcement agents ha d obs erved Foster take a green suitcase into a condominium complex, whic h appear ed to be empty based on the manner in which Foster carried it

. Foster then drove to a restaurant where Payne met him, and the two drove back to the condominium complex. Foster then got out of the car and walke d

over to a gate where a man handed Foster the suitcase which now appeared to be he avy, based upon the manner in which Foster carried it. Foste r placed the suitcase in the trunk of Payne's car and Payne drove away.

Before this transaction, law enforcement agents had long bee n
surve illing Foster. The information known to the agents was that: (1 ) Foster previously had explored money laundering; (2) Foster had been seen in the company of Woods, who the agents previous ly had found driving a car with a hi dden compartment in the trunk to which a narcotics trained do g positively had alerted for the presence of a nar cotic odor; (3) the agents had seized an abandoned box from Foster's trash to which a narcotic s trained dog had alerted to the presence of a narcotic odor; and (4) o n February 15, 1994 the agents had observed Foster using what they believed to be counter-surveillance driving techniques on his way to the condominiu m complex.

Vi ewing the totality of the circumstances through the eyes of a n experienced narcotics agent, we conclude that probable cause existed for the agent s to believe that the suitcase Foster put in Payne's trun k contained contraband or evidence. Cf. United States v. Piaget , 915 F.2d 138, 139-40 (5th Cir. 1990) (per curiam) (probable cause to stop and searc h defendant's car existed where a man with a history of drug dealing

### -9-

transferred bag to defendant's car). Because the agents had probable caus e to search the suitcase in Payne's trunk, we do not need to consider whethe r Payne consented to the search or if he did so co nsent, whether his consent was vitiated by his illegal arrest.

Foster a rgues that there was no probable cause for his warrantles s arrest or for the seizure of his bag from the trunk of his car tha t
oc curred on February 17, 1994. This stop of Foster followed la w enforcement agents' observation of Foster placing a heavy duffle bag in th e trunk of his car. We hold that the officers had probable cause to believe the duffl e bag in Foster's car contained contraband or evidence. We s o conclude based on all of the factors supporting probable cause for the sto p of Payne's car, plus the seizure of twenty kilograms of cocaine from a suitcase Foster hande d to Payne just moments before agents seized it, and the agents' observati on of Foster with this duffle bag that he had placed in his trunk. As noted above, probable cause on ly requires "a probability or substantial chance of criminal activity, not an actual showing of such activity." Gates , 462 U.S. at 243-44 n.13. Here, based on the totality of the circumstances, agents had more than enough reason to believe that the duffle bag Foster placed in his trunk contained evidence or contraband , and therefore the off icers were entitled to search the bag. See Acevedo , 500 U.S. at 573-76.

Becaus e we hold that the agents had probable cause to search th e duffle b ag, we do not need to reach Foster's arguments that he did no t voluntarily consent to the search of his bag, or that he was illegall y
arre sted, because no fruit was obtained from this seizure. The onl y evidence obtained from the stop was the duffle bag that the officers had probable cause to believe contained evidence or contraband.

III. Foster ne xt argues, contrary to the finding of the magistrate judge that the district court adopted, that he did not voluntarily consent to th e
sea rch of his residences. We review for clear error a finding o f voluntariness. See United States v. White , 42 F.3d

### -10-

457, 459 (8th Cir. 19 94). Foster argues that because agents interrogated him in violation of M iranda v. Arizona , 384 U.S. 436 (1966), the evidence obtained through his consent during the interrogation must be suppressed.

We have never held that a request to search must be preceded b y Miranda warnings, or that a lack of Miranda warn ings invalidates a consent
to search. See United States v. Ramos , 42 F.3d 1160, 1164 (8th Cir. 1994) (consent to search was

vo luntary even though defendant had been illegally detained and law enforcement officer had failed to giv e Mi randa warnings), cert. denied , 115 S. Ct. 2015 (1995) ; cf. United States v. Washington , 957 F.2d 559, 563 (8th Cir.) (rejecting defendant's argument that agents should have given him a Miranda warning before being asked for permission to searc h), cert. denied , 506 U.S. 883 (1992). In Schneckloth v

. Bustamonte , 412 U.S. 218 (1973), the Supreme Court discussed the Miranda decision stating that "the basis for decision was the need to protect the fairn ess of the trial itself. . . . There is a vast difference betwee n those rights that pro tect a fair criminal trial and the rights guaranteed under the Fourth Amendment." Id. at 240-41. In short, Miranda right s affect the integrity of the truth finding proces s in a criminal trial, but Fourth Amendment rights go to the right of privacy and to be left alone. See U nited States v. Ritter , 752 F.2d 435, 438 (9th Cir. 1985). As th e purposes of the two protections are different, i t would be unreasonable to require Miranda warnings before a request for permission to search. See United States v. Hall , 565 F.2d 917, 920-21 (5th Cir. 1978). Instead, the fact t hat Miranda warnings were not given will simply be a factor t o consider under the voluntariness test. See id. at 921.

In Schn eckloth the Supreme Court held that "whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express o r implied, is a question of fact to be determined from th e totality of all the circumstances." 412 U.S. at 227. In United States v. Chaidez , 906 F.2d 377 (8th Cir. 1990), we obser ved that courts should ask whether the person who consented:

### -11- (1) was detained and questioned for a long or short time; (2)
was threatened, physically intimidated, or punished by th e police; (3) relied upon promises or misrepresentat ions made by the police; (4) was in custody or under arrest when the consent was given; (5) was in a public or secluded place; o r (6) either objected to the search or stood by silently while the searc h occurred.

Id. at 381 (citations omitted).

The magistrate assessed the voluntariness of the consent under th e totality of the circu mstances, applying the Chaidez factors, and made the following factual findings. Agents stopped Foster at 12:08 p.m. Foster was at the scene of the stop for approximately f orty to fifty-five minutes and it took approximately ten to fifteen minutes to transport Foster to th e police station. Two detectives questioned Foster when he arrived at the station. Foster signed the consent forms at 1:2 1 p.m. Officers explained Foster's rights to him, and gave him a chance to review the forms that mad e clear that he had a constitutional right to refu se to permit the searches. Furthe r, the magistrate made a particular factual finding that "[n] o thre ats or promises were made to induce [Foster] to sign the consen t forms." During the interview officers allowed Foster to go to the res t
roo mand gave him drinking water. One of the officers conducting th e interview estimated t hat the interview was ninety minutes long, but other officers indicated th at from the time of the stop of Foster's car, to the presentation of the consent forms, only ninety minutes elapsed. Afte r Fost er signed the consent forms, officers advised him of his Mirand a rights. T he magistrate judge concluded that though the court did no t "condo ne the officers' failure to give defendant Foster his Mirand a warning s," it did "not appear that the defendant's will was in any wa y overborne." We see nothing clearly erroneous with this conclusion and thu s affirmthe district court's finding that Foster voluntarily consented to the search of his residences.

### -12- IV.

Payne next argues that the government violated his Fifth Amendmen t rights because the government knowingly introduced and failed to correct the perjurious testimony of Marvin Bonds. Payne failed to raise this issu e before the district c ourt, so we review only for plain error. See United States v. Jenkins , 78 F.3d 1283, 1288 (8th Cir. 1996). Payne alleges that Bonds perjured himself when he testified that he received the $40,000 from Payne that authorities seized from Bonds when he was arrested in Gree n River, Utah, and when Bonds testified that the q uarter kilogram of cocaine found in his home was payment he received from Payne.

In order to prove prosecutorial use of false testimony, Payne mus t establ ish that: (1) the prosection used perjured testimony; (2) th e prosecution knew or should have known of the perjury; and (3) there is a reasonable likelihood that the perjured testimony could have affected the jury's judgment. See United States v. Martin , 59 F.3d 767, 770 (8th Cir. 1995).

Payne argues that Bonds perjured himself because arrest records i n the Gr een River, Utah area demonstrate that authorities never arreste d Bonds in that area, and because a government agent testified before a gran d jury that Bonds had bought the cocaine that auth orities found in his house during a search. The re is no reasonable likelihood that Bond's testimony

on these issues would have affected the jury's judgment in light of th e minor significance th ese facts had on the overwhelming amount of evidence against Payne and therefore the district court did not plainly err.

V. Foster argues that the district court erred in admitting th e testimony of Carlos G aravito, a paid informant, regarding a December 1993 meeting between Garavito and Foster where they d iscussed money laundering. Foster contends that this testimony

### -13-

illustrated that Garavito had ties to Columbia and that the government use d this testimony to enl arge the size of the conspiracy from Columbia to St. Louis.

We review evidentiary rulings for an abuse of discretion. See United States v. Hamell , 931 F.2d 466, 469 (8th Cir.), cert. denied , 502 U.S. 928 (1991). We will not reverse a conviction on the basis of an erroneou s evidentiar y ruling where the error is harmless. See United States v

. Byler , 98 F.3d 391, 3 94 (8th Cir. 1996). We give deference to a district court's decision unde r the Rule 403 balancing test and reverse only for a clear abuse of discre tion. See United States v. Rabins , 63 F.3d 721, 726 (8th Cir. 1995), cert. denied , 116 S. Ct. 1031 (1996). Unfair prejudice "speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground dif ferent from proof specific to the offense charge d." Old Chief v. United States , 117 S. Ct. 644, 650 (1997). The critical issue is the degree of unf airness of the prejudicial evidence and whether it tends to support a decision on an improper basis.

Here , Foster concedes that the "evidence may be tangentiall y releva nt," but argues that it was substantially more prejudicial tha n pro bative of the indicted charge, and that therefore the district cour t abused its discretion in admitting the evidence. As Foster concedes that the evide nce may be relevant, we look for the prejudicial effect o f Garavito's testimony. Foster argues Garavito's testimony was mor e prejud icial than probative because the government used the testimony t o enlarge t he size of the conspiracy from Columbia to St. Louis whic h inflamed the jury. N othing indicates that Garavito's testimony lured the fact finde r into declaring guilt on the fact that the drug conspirac y stret ched from Columbia to St. Louis instead of from California to St

. Louis. See Old Chief , 117 S. Ct. at 650. Garavito was only one of severa l witnesse s presented by the government. The emphasis placed on hi s testimony and the size of the conspiracy issue, in light of the entir e trial, was minimal. There was no unfair prejudicial effect of Garavito's testimony. The trial court has broad discretion in determining whether the probative value of Garavito's testimony outweighed the unfair

### -14-

prejudice

. See Ravins , 63 F.3d at 726. We cannot say the district cour t abused its discretion in admitting this evidence.

VI.

Foster argues that the district court erred in finding hi m responsible for the distribution of more than tw enty kilograms of cocaine. We review the distric t court's determination of a drug quantity for clear

error. See 18 U.S.C. § 3742(e) (1994); United States v. Escobar , 50 F.3d 1414, 1424 (8th Cir. 1995). A defendant may be held responsible only for "dr ug quantities implicated in the conspiracy that are reasonabl y foreseeable to [her or him]." United States v. Montanye , 996 F.2d 190, 19 2 (8th Cir. 1993) (en banc), cert. denied , 117 S. Ct. 318 (1996). We observ e that the amount of drugs attributed to the entire conspiracy is no t automatically attributable to each defendant. S ee United States v. North , 900 F.2d 131, 133 (8th Cir. 1990).

Our revie w of the evidence indicates that authorities seized twenty kilograms of cocaine shortly after its distribution from Foster to Payne. In addition, Leroy Eason testified that he obtai ned forty-six kilograms of cocaine from Foster o n the four trips he made to Los Angeles while he was a member of this cons piracy. During the sentencing hearing, the district court considered Eason's credibility in light of the reduced sentence Easo n received for his testimony, and specifically noted that the jury had reaso n to credit Eason's testimony. We see no clear error in the acceptance of this testimony. Thus, the cocaine seized in the green suitcase and Eason' s trial testimony alone show Foster's responsibili ty for sixty-six kilograms of cocaine, a greater amount than the district court attributed to him, an d therefor e there is no need for us to consider other references t o additional amounts of cocaine. We cannot say the district court clearly erred i n holding Foster responsible for more than twenty kilograms o f cocaine.

### -15- VII.

Payne argues that the district court erred in giving him a four -level enhancement for being the leader of criminal activity that involved five

or more participants under United States Sentencing Guideline sectio n 3B1. 1(a). Though slightly unclear from his brief, he challenges th e finding that more than five people participated in this conspiracy, or tha t he directed five participants in this conspiracy.

We review for clear error the district court's factual determin ations made in consideration of this sentencing enhancement. See 18 U.S.C. § 3742(e); United States v. Harry , 960 F.2d 51, 53 (8th Cir. 1992). W e review de novo, howev er, the district court's application of a section of the senten cing guidelines to a particular case. See United States v

. McFarlane , 64 F.3d 1235, 1237 (8th Cir. 1995).

Section 3 B1.1(a) provides for a four-level upward adjustment of the offense level in case s in which "the defendant was an organizer or leader of a crimi nal activity that involved five or more participants or wa s otherwise extensive." U.S.S.G. § 3B1.1(a) (1995). Application note 1 of the commentary to section 3B1.1 defines the term "participant" as "a perso n who is criminally res ponsible for the commission of the offense, but need not have been convicted."

First, Payne himself was a participant. See U.S.S.G. § 3B1.1 , comment. (n.1); Harry , 960 F.2d at 53. Payne concedes in his brief that he was involved in the conspiracy with Foster, that he "directed Tohill" in his role as a cour ier, and that he "directed Bonds in certain respects of the conspiracy." Payne argues, however, that the government presented

no ev idence showing that Payne had any control over Bentley, Eason, o r Woods. Indeed, Payne argues that there was no trial testimony whatsoever that he directed either Bentley or Woods, and that not only did he no t direct Eason, but that Eason's "role in the conspiracy appears to have bee n more of a 'joint venturer' than as a mere participant."

### -16- Payne's argument that he did not have control over Bentley, Eason , or Woods, however, misses the point. In this ci rcuit, a four-level upward adjus tment applies where the evidence shows a defendant is a leader o r organizer of an illegal enterprise that involved five or more participants

even if the defendant's leadership role did not encompass all th e participa nts. See United States v. Smith , 49 F.3d 362, 367 (8th Cir.) , cert. deni ed , 115 S. Ct. 2009 (1995). As Payne has conceded that h e organized Bonds and Tohill, we look only to see if this illegal enterprise involved five or more participants. As already stated, Payne, Foster , Bonds, and Tohill were involved in the conspiracy. In addition, Payne's brief concedes that E ason was involved in the conspiracy, but argues that he was mo re of a joint venturer, rather than a mere participant. Th e guidel ines, however, define a participant as one "who is criminall y responsib le for the commission of the offense" and make no mention of a role label ed as a joint venturer. Eason's testimony indicates he wa s involved in the same conspiracy with Foster, Pay ne, and the others. Thus, the district court di d not err in finding Payne was a leader or organizer in this conspiracy, and that the conspiracy involved at least fiv e participants. Accordingly, we affirm the four-level upward adjustment.

VIII.

Payne and Foster raise numerous other arguments. Payne argues that the di strict court erred in refusing to sever his trial from that o f Foster's. The government indicted Foster and Payne for joint activities that were fully supported by the evidence. Whil e the government presented some evidence of Fost er's interest in money laundering that did not apply to Payne, Foster was not charged with this offen se, and the government did not emphasize the money laundering evidence at trial. Payne also argues that the district cou rt erred in not suppressing evidence seized from his hotel room, and that the district court should have dismissed th e indict ment against him under Federal Rule of Criminal Procedure 48(b)

. Foster argues that the district court erred in limiting the closin g argum ents to thirty minutes for each defendant in light of the extrem e amount

### -17-

of co nflicting testimony. We reject all these arguments, which are s o lacking in merit that they do not justify detailed discussion.

A true copy.

Attest:

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