UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4098

LESTER LEE BASS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4422

TOMMY ESSICK,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

William L. Osteen, Sr., District Judge.

(CR-95-112)

Submitted: March 11, 1997

Decided: July 31, 1997

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

A. Wayne Harrison, Sr., HARRISON, NORTH, COOKE, & LANDRETH, Greensboro, North Carolina; Robert I. O'Hale, CLIFFORD,
CLENDENIN & O'HALE, L.L.P., Greensboro, North Carolina for

Appellants. Walter C. Holton, Jr., United States Attorney, Harry L.

Hobgood, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Tommy Essick and Lester Lee Bass were convicted by

a jury of one count each of conspiracy to possess with intent to distribute and to distribute marijuana (21 U.S.C. § 846 (1994)) and

attempted possession of marijuana with intent to distribute (21 U.S.C.

§ 841(a)(1) (1994)). In these consolidated appeals, Essick and Bass

raise seven issues: (1) whether the district court erred in denying Essick's motion to dismiss count two of the indictment (attempted possession of marijuana); (2) whether the district court erred by giving an

aiding and abetting instruction to the jury in connection with count

two of the indictment; (3) if the district court erred in denying the

motion to dismiss and by giving the aiding and abetting instruction,

whether these errors prejudicially confused the jury and made a fair

trial on count one (conspiracy) impossible; (4) whether the district

court erred by denying Bass's motion for judgment of acquittal on the

conspiracy charge; (5) whether the district court erred by not allowing

Bass to present evidence pursuant to Fed. R. Evid. 804(b)(3);

(6) whether the district court erred by not allowing Bass to present

evidence showing that he was not predisposed to commit the crime

and failing to give an entrapment instruction to the jury; and

(7) whether Bass was entitled to a downward adjustment from the

Sentencing Guidelines* as a minor participant. Finding no reversible

error, we affirm.

_________________________________________________________________

*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

 2
Essick and Bass were part of a large drug conspiracy headed by

Hobart ("Hobart") and Sandra Crotts. Tony Walser ("Walser") was

one of the primary lieutenants of the conspiracy. Walser was apprehended in March 1995 and agreed to cooperate with authorities. As

part of this cooperation, Walser, along with an undercover agent, set

up a shipment of approximately 118 pounds of marijuana from Texas

to North Carolina. The shipment was to be delivered in a fifty-fivegallon barrel on April 5, 1995.

After Walser returned to North Carolina, he and Hobart discussed

who would pick up the marijuana. Hobart informed Walser that Essick enlisted Bass to make the pick-up. Essick told Bass that he (Bass)

would receive $10,000 for his efforts. Bass also admitted at trial that

he knew Hobart and Essick were involved in drugs and suspected that

the pick-up involved some type of controlled substance.

Walser contacted Essick who told him when and where to pick up

Bass. At some point, Bass expressed concerns about Walser because

he (Bass) had been instrumental in putting Walser in prison several

years before. Essick set up a meeting with Hobart, who assured Bass

that the pick-up was "legitimate." Based on his meeting with Hobart,

Bass agreed to pick up the drugs. Bass went to the depot on April 5,

1995 to pick up the drugs, and government agents assisted him in

loading the barrel into the truck. Bass was apprehended as he

attempted to leave the depot.

No. 96-4422

Essick claims that the district court erred in denying his motion to

dismiss the attempted possession count because the evidence presented at trial was insufficient to support conviction. Specifically, Essick alleges that the Government failed to show that he was to receive

any of the marijuana. Essick further attempts to portray the April 5

incident as being entirely between Walser and Bass.

We find these claims to be without merit. Essick was a frequent

customer, receiving at least forty-seven pounds of marijuana during

the course of the conspiracy. In addition, Essick recruited Bass,

arranged for Walser to provide Bass with a rental truck and a bill of

lading, told Walser where and when to pick up Bass, arranged for

 3
Bass to meet with Hobart when Bass expressed concerns about the

pick-up, made inquiries after Bass's arrest, and was to be paid $1000

for his services. While Essick is correct in his assertion that there was

no evidence showing that he was to receive any of the marijuana, the

evidence clearly showed that he played a major role in arranging the

pick-up. Accordingly, we find that the evidence was sufficient to find

that Essick possessed the culpable intent to commit the crime charged

and took substantial steps toward the completion of the crime. See

United States v. Neal, 78 F.3d 901, 906 (4th Cir.), cert. denied, ___

U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410).

Essick also asserts that the district court erred in giving an aiding

and abetting instruction because the evidence did not support the

instruction and because he was never charged with aiding and abetting. We find that this argument is also without merit.

An "indictment or information need not specifically charge aiding

and abetting in order to support a conviction on that charge . . .

[because aiding and abetting] applies implicitly to all federal

offenses." Pigford v. United States, 518 F.2d 831, 834 (4th Cir. 1975);

see also United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.

1994). Since the evidence supported the elements of the offense, and

since the Government argued for aiding and abetting liability, the

instruction was proper. See Mucciante, 21 F.3d at 1234 ("An aiding

and abetting jury instruction is appropriate where the prosecution

makes it known that it intends to proceed on a theory of aiding and

abetting and the evidence so warrants.") (citation omitted). We therefore find that the district court did not abuse its discretion in giving

an instruction on aiding and abetting.

Since the district court did not err as to Issues One and Two above,

Essick's third issue is moot. Moreover, since aiding and abetting has

different elements from conspiracy, and since the jury was properly

instructed to keep the offenses separate, we find that Essick failed to

show how the jury was confused by the evidence.

No. 96-4098

Bass asserts that the evidence was insufficient to support his conviction for conspiracy because the only one he communicated with

 4
was Walser. Since Walser was acting as a government informant, he

was incapable of forming the necessary criminal intent to form a conspiracy. See United States v. Heater, 63 F.3d 311, 323 (4th Cir. 1995),

cert. denied, ___ U.S. ___, 64 U.S.L.W. 3485 (U.S. Jan. 16, 1996)

(No. 95-7090) (one cannot conspire with a government agent or informant).

We find that the evidence was sufficient to implicate Bass in the

overall conspiracy. See United States v. Brooks , 957 F.2d 1138, 1147

(4th Cir. 1992) ("Once it has been shown that a conspiracy exists, the

evidence need only establish a slight connection between the defendant and the conspiracy to support conviction."). It was undisputed

that there was a large drug conspiracy, and Bass admitted that he

knew that he was picking up something for someone he knew was

involved with drugs (Hobart) and that he suspected the barrel contained controlled substances. Therefore, the "slight connection"

between Bass and the larger conspiracy was established. Moreover,

contrary to Bass's assertions, evidence was presented at trial showing

that Bass conspired with Essick and Hobart, in addition to Walser. As

a result, there was sufficient evidence to support Bass's conviction for

conspiracy, and the district court did not err in denying Bass's

motion.

Bass wanted to introduce evidence at trial that Walser told Essick

to have Bass make the pick-up instead of Essick's son. Bass wanted

to use the statement to support his claim that Walser "set him up" out

of revenge for Bass's role in putting Walser in prison several years

earlier.

The burden was on Bass to show that the evidence met the requirements of Fed. R. Evid. 803(b)(3), and "the court's decision on its

admissibility is reviewed for abuse of discretion." United States v.

Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995), cert. denied, ___ U.S.

___, 64 U.S.L.W. 3550 (U.S. Feb. 20, 1996) (No. 95-1076). We find

no abuse of discretion here.

Hearsay statements may only be admitted under Rule 803(b)(3) if

"(1) the declarant is unavailable, (2) the statement is genuinely

adverse to the declarant's penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Id.

 5
(internal quotation marks omitted). The proffered evidence failed to

meet any of these requirements. First, contrary to Bass's assertions,

Walser was the original declarant, not Essick. Since Walser testified

at trial, he certainly was not "unavailable." Second, there was no evidence showing that the alleged statement was against Walser's penal

interest. Finally, evidence was presented at trial showing that Hobart

suggested using Bass and that Walser was simply told that Bass was

the one making the pick-up. As a result, the evidence at trial contradicted the trustworthiness of the statement rather than corroborated it.

During the trial, Bass sought to introduce testimony from several

witnesses who were prepared to testify that Bass had a reputation as

a law-abiding citizen with no prior involvement in criminal activities.

Bass sought to introduce the testimony to prove that he was not predisposed to commit the crime.

We find that the district court properly declined to admit the proffered testimony. Since "the fact that a defendant has not previously

committed any related crime is not proof of lack of predisposition,"

the testimony was irrelevant. United States v. Osborne, 935 F.2d 32,

37-38 (4th Cir. 1991).

Since the question of entrapment is generally one for the jury, this

court reviews the district court's decision not to give an entrapment

instruction de novo. United States v. Singh, 54 F.3d 1182, 1189 (4th

Cir. 1995). Applying this standard, we find that the district court did

not err in deciding not to give the instruction. Entrapment is an affirmative defense, and the burden is on the defendant to go forward with

evidence beyond a mere scintilla that the government induced him to

commit an offense he was not otherwise predisposed to commit.

Osborne, 935 F.2d at 38. A defendant who is unable to carry his burden forward is not entitled to submission of the issue to the jury. Id.

The Supreme Court has held that the entrapment defense has two

elements: (1) government inducement and (2) lack of predisposition.

Of the two, predisposition is the more important. Mathews v. United

States, 485 U.S. 58, 63 (1988). In the present case, Bass did not present any evidence to support his conclusory claims that he was not predisposed to commit the offense, other than the inadmissible testimony

concerning his lack of prior involvement in criminal activity. More-

 6
over, other than Bass's self-serving claims that Walser pushed for his

recruitment, there was no evidence of government inducement. To the

contrary, substantial evidence was presented showing that Hobart and

Essick recruited Bass, not Walser. Since Bass failed to present anything more than a "mere scintilla" of evidence, the district court properly found "as a matter of law that no entrapment existed." Osborne,

935 F.2d at 38.

Finally, Bass asserts that the district court should have given him

a downward adjustment to his base offense level pursuant to USSG

§ 3B1.2 because he was a minor participant in the conspiracy. We disagree.

The district court's determination concerning Bass's role in the

offense is factual in nature and is reviewed for clear error. United

States v. Arnoldt, 947 F.2d 1120, 1128 (4th Cir. 1991). Moreover, the

burden was on Bass to show that he was entitled to the adjustment.

See United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990). We

find that Bass failed to meet this burden.

While Bass is correct in his assertion that he was only a minor participant in the overall conspiracy, he certainly was not a minor participant in the events surrounding the attempted possession of 118

pounds of marijuana on April 5, 1995. In fact, the weight of the evidence showed that, as the person attempting to pick up the drugs, he

was a primary participant. Since the adjustment is only available to

the least culpable member(s) of the group (USSG§ 3B1.2, comment.

(n.1)), and since Bass was at least as culpable as Hobart, Essick, and

Walser, the district court's decision not to grant the adjustment was

not clearly erroneous.

We therefore affirm the orders of the district court in both appeals.

We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the court and

argument would not aid the decisional process. Bass's "Motion for

Review of Full Testimony of Tony Walser, Government Witness, in

Support of Appellant's Brief" is granted to the extent that it asks that

we review Walser's testimony. The motion is denied as to any additional relief requested.

AFFIRMED

 7