UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5501

CHARLES ALEXANDER HUGHES, SR.,

a/k/a Little Charles,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5502

DENNIS DWAYNE JONES,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert J. Staker, Senior District Judge.

(CR-94-15)

Argued: May 10, 1996

Decided: July 12, 1996

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Joseph Curtis, Ashland, Kentucky, for Appellant

Hughes; Gregory Marshall Courtright, COLLINS & COURTRIGHT,

Charleston, West Virginia, for Appellant Jones. Miller Allison

Bushong, III, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States

Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Charles Alexander Hughes, Sr., and Dennis Dwayne Jones (collectively Appellants) were convicted of conspiracy to distribute and to

possess with intent to distribute cocaine base, see 21 U.S.C.A

§§ 841(a)(1), 846 (West 1981 & Supp. 1996), and one count each of

distribution of cocaine base, see 21 U.S.C.A. § 841(a)(1); additionally, Jones was convicted of one count of possession with intent to

distribute cocaine base, see id. Although Appellants raise a host of

alleged errors at trial and sentencing, all of their contentions are

meritless; accordingly, we affirm their convictions and sentences.

I.

Viewed in the light most favorable to the Government, see Glasser

v. United States, 315 U.S. 60, 80 (1942), the testimony of Government witnesses established the following facts. From at least March

1993 to January 1994, Hughes lived in his mother's house with Jones,

Robert Ziegler, Greco Lewis, and Jerry Westmoreland. Over the

course of this period, Hughes's residence served as a distribution

point for sales of cocaine base. Hughes traveled out-of-town to purchase powder cocaine; upon Hughes's return, members of the house-

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hold would convert the powder cocaine to cocaine base, cut the

cocaine base into rocks, and store the cocaine base in baggies in

Hughes's basement for future distribution.

Jones served as Hughes's "right-hand man" and the "main seller,"

assisting Hughes in distributing the cocaine base to users and to other

dealers selling cocaine base for the conspiracy. (J.A. vol. III, tr. at

427.) Cocaine base was available to customers at Hughes's residence

twenty-four hours per day, seven days per week.

During the spring of 1993, the Huntington, West Virginia, Federal

Drug Task Force began surveillance of Hughes's residence after an

investigation revealed that numerous individuals suspected of using,

possessing, and distributing significant quantities of cocaine base frequented the house. In connection with the investigation, confidential

informants made seven controlled purchases of cocaine base at

Hughes's residence: three from Jones, one from Hughes, one from

Ziegler, one from Westmoreland, and one from an unidentified individual. The investigation culminated in the execution of a federal

search warrant at Hughes's residence. The search resulted in the confiscation of 6.18 grams of cocaine base and $1,654 in cash, and the

arrest of Hughes, Jones, Lewis, Westmoreland, and Stanley Russell.

Hughes's son, Charles A. Hughes, Jr., was later arrested for his role

in the conspiracy.

Subsequently, a federal grand jury in the Southern District of West

Virginia indicted Hughes, Jones, Hughes, Jr., Westmoreland, Ziegler,

Russell, and Lewis each for conspiracy to distribute and to possess

with intent to distribute cocaine base; Hughes, Jones, Westmoreland,

and Ziegler each for one count of distribution of cocaine base; and

Jones and Lewis each for one count of possession with intent to distribute cocaine base. Pursuant to plea agreements, Jones, Hughes, Jr.,

Westmoreland, Ziegler, Russell, and Lewis pleaded guilty to the conspiracy charge prior to trial and agreed to cooperate with the Government in exchange for the its promise to move the court to dismiss the

other charges. After the Government acquired extensive evidence that

Jones had not been forthright and truthful in his debriefings, the Government successfully moved the court to void his plea agreement and

set a trial date for Jones.

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After a one-week joint trial, the jury returned verdicts convicting

Hughes and Jones on all counts. The district court sentenced Hughes

to 324 months imprisonment and a five-year term of supervised

release on the conspiracy conviction and 240 months imprisonment

and a three-year term of supervised release on the distribution conviction, to run concurrently. The district court sentenced Jones to 188

months imprisonment each on the conspiracy, distribution, and possession convictions, and supervised release terms of five years, three

years, and four years, respectively, all to run concurrently. Additionally, the district court imposed fines of $5,000 on Hughes and $4,000

on Jones.

Although Appellants challenge their convictions and sentences on

numerous grounds, we limit our written discussion to Appellants'

three main arguments: (1) whether the Government failed to prove

affirmatively that the evidence introduced at trial was derived from

legitimate sources independent of Jones's debriefings under Kastigar

v. United States, 406 U.S. 441 (1972); (2) whether the Government

offered sufficient evidence at trial to sustain Appellants' conspiracy

convictions; and (3) whether the district court clearly erred in finding

that Hughes was the "organizer or leader of a criminal activity that

involved five or more participants" under United States Sentencing

Commission, Guidelines Manual, § 3B1.1(a) (Nov. 1994). We

address these contentions seriatim.

II.

Jones first claims that the Government failed to meet its burden

under Kastigar of proving that its prosecution was based on evidence

obtained independently of the statements Jones made pursuant to the

plea agreement that was later revoked. See Kastigar, 406 U.S. at 460-

461. Because the terms of Jones's plea agreement permitted the Government to revoke the agreement and its attendant protections in the

event Jones breached it, we reject Jones's contention.

In Kastigar, the Supreme Court upheld the power of the Government to compel a witness' self-incriminating testimony in exchange

for the grant of use and derivative use immunity under 18 U.S.C.A.

§ 6002 (West 1985 & Supp. 1996). See Kastigar, 406 U.S. at 448. In

upholding this power, however, the Court devised certain safeguards

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to preserve the witness' Fifth Amendment privilege against compelled

self-incrimination. See id. at 460-61. To protect the privilege, the

Government is forbidden from using "the immunized testimony or

any evidence derived from it either directly or indirectly" in any subsequent prosecution of the witness. United States v. Harris, 973 F.2d

333, 336 (4th Cir. 1992). This mandate compels the district court to

hold a "Kastigar hearing to allow the government the opportunity to

demonstrate that all its evidence came from sources independent of

the compelled testimony." Id. In the Kastigar hearing, the Government bears the "heavy burden" of proving "that all of the evidence it

proposes to use was derived from legitimate independent sources."1

Kastigar, 406 U.S. at 461-62.

The protections afforded a defendant under Kastigar may arise in

two circumstances. First, Kastigar may be implicated pursuant to

§ 6002 if the Government compels the defendant to testify after he

invokes his privilege against self-incrimination. See United States v.

Eliason, 3 F.3d 1149, 1153 (7th Cir. 1993). Second, the defendant

may be entitled to the Kastigar safeguards under principles of contract law if the defendant agrees to cooperate with the Government,

and in exchange, the Government promises not to use the information

provided against the defendant. See id.; United States v. Pelletier, 898

F.2d 297, 301 (2d Cir. 1990). Because the Government never granted

Jones statutory use and derivative use immunity under § 6002, we

address only whether the protections Jones asserts arose from the plea

agreement. See United States v. Brown, 979 F.2d 1380, 1381 (9th Cir.

1992) ("[T]he Government is not bound by the procedures and

requirements of the use immunity statute when granting immunity in

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1 Jones misapprehends the meaning of the term "legitimate independent

sources": In his reply brief, Jones asserts that the witnesses for the Government are neither legitimate nor independent because they are "selfconfessed drug addicts and co-defendants and `associates' testifying

under the conditions of their plea agreements." (Appellants' Reply Br. at

1.) Under Kastigar, however, we inquire only whether the Government

prosecuted the defendant using evidence derived directly or indirectly

from the defendant's immunized testimony, not whether the Government's witnesses are credible; indeed, we are "bound by the credibility

choices of the jury." United States v. Lamarr , 75 F.3d 964, 973 (4th Cir.

1996) (internal quotation marks omitted).

 5
the form of a contractual agreement . . . ."). In determining whether

Jones is entitled to the Kastigar protections, we turn to the terms of

the plea agreement itself, see Pelletier, 898 F.2d at 301-02, and we

interpret it using principles of contract law, see Brown, 979 F.2d at

1381.

Jones's plea agreement does not require the Kastigar safeguard that

Jones asserts because the agreement provides for the revocation of

any protection from prosecution upon Jones's breach. Although the

plea agreement grants Jones protection from prosecution that appears

to be similar in scope to the concept of use and derivative use immunity defined in Kastigar,2 the terms of the agreement expressly provide that the protection is revoked if "the agreement becomes void

due to violation of any of its terms by [Jones]," (J.A. vol. II, p. 176.)

Thus, even if we were to assume that the plea agreement required the

Government to prove a legitimate, independent source for its evidence

in a subsequent prosecution, that requirement was revoked upon

Jones's failure to be forthright and truthful.3 Because Jones does not

dispute that he failed to be forthright and truthful in his debriefings,

we hold that the Government was released from the strictures of

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2 Paragraph five of the plea agreement provides, in pertinent part:

Nothing contained in any statement or testimony given by Mr.

Jones pursuant to this agreement or any evidence developed

therefrom will be used against him directly or indirectly in any

further criminal prosecutions or in determining the applicable

guideline range under the Federal Sentencing Guidelines . . . .

However, nothing contained in this agreement restricts the use of

information obtained by the United States from an independent,

legitimate source, separate and apart from that information and

testimony being provided by the defendant pursuant to this

agreement, in determining the applicable guideline range, nor

does this agreement prevent Mr. Jones from being prosecuted for

any violations of federal and state laws he may have committed

should evidence of any such violations be obtained from any

such independent, legitimate source.

(J.A. vol. II, p. 176-77.)

3 The plea agreement provides that"Jones will be completely forthright

and truthful with this office and federal, state and local law enforcement

agents with regard to all inquiries made of him." (J.A. vol. II, p. 176.)

 6
Kastigar upon Jones's breach of the plea agreement.4 See United

States v. Skalsky, 857 F.2d 172, 176 (3d Cir. 1988) ("If a witness

breaches the agreement by not providing truthful testimony, the witness can be prosecuted not only for perjury and obstruction of justice,

but also for any substantive offenses about which he has testified.")

Jones further invokes Federal Rule of Criminal Procedure 11 as a

basis for placing a burden on the Government to establish a legitimate, independent source for the evidence used in his prosecution.

Although Rule 11 provides that "statement[s] made in the course of

plea discussions . . . which result in a plea of guilty later withdrawn"

are inadmissible against a defendant, Fed. R. Crim. P. 11(e)(6)(D),5

it does not further burden the prosecution with a requirement to prove

the source of its evidence. Because Jones does not contend that the

prosecution offered statements made in the course of plea discussions

against him at trial, but argues only that the district court failed to provide to him the protection under Kastigar to which he erroneously

believed he was entitled, we also find no violation of Rule 11.

III.

Second, Appellants claim that the Government failed to offer sufficient evidence at trial to sustain their convictions for conspiracy to

distribute and to possess with intent to distribute cocaine base. Appellants cite two bases for their claim: (1) The small physical amount of

cocaine base recovered in the search of Hughes's residence is insufficient to infer that Appellants conspired to distribute and to possess

with intent to distribute cocaine base; and (2) although the Government may have proved individual drug transactions, the Government

failed to prove the necessary agreement between Appellants for a con-

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4 Even if the Government were burdened with the safeguards of

Kastigar, the district court ruled and the Government argues persuasively

that the evidence offered in the prosecution of Jones was derived from

legitimate sources independent of Jones's statements made pursuant to

the voided plea agreement. Because we conclude that Jones was not entitled to a Kastigar hearing in the first instance, however, we decline to

address this issue.

5 Federal Rule of Evidence 410(4) contains a similar proscription.

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spiracy. Our review of the evidence, however, leads to the conclusion

that the evidence is sufficient to sustain the convictions.

To prove a criminal conspiracy involving illicit drugs, the Government must establish "(1) an agreement between two or more persons

to undertake conduct that would violate the laws of the United States

relating to controlled substances and (2) the defendant's wilful joinder

in that agreement." United States v. Clark , 928 F.2d 639, 641-42 (4th

Cir. 1991). The elements of conspiracy may be proved through circumstantial evidence, United States v. Collazo , 732 F.2d 1200, 1205

(4th Cir. 1984), cert. denied, 469 U.S. 1105 (1985), and "[o]nce 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," United States v. Brooks, 957 F.2d 1138, 1147 (4th

Cir.), cert. denied, 505 U.S. 1228 (1992).

In Glasser, the Supreme Court explained that a jury verdict "must

be sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it." Glasser, 315 U.S. at 80.

A reviewing court, therefore, will sustain a conviction if a rational

trier of fact could have found the elements of the crime beyond a reasonable doubt based on the record evidence. See United States v.

Powell, 469 U.S. 57, 67 (1984). In applying this standard of review,

we must remain cognizant that "[t]he jury, not the reviewing court,

weighs the credibility of the evidence . . . , and if the evidence supports different, reasonable interpretations, the jury decides which

interpretation to believe." United States v. Murphy, 35 F.3d 143, 148

(4th Cir. 1994) (citations omitted), cert. denied, 115 S. Ct. 954

(1995). With these principles in mind, we turn to Appellants' arguments.

Appellants contend that because the Government recovered only

8.26 grams6 of cocaine base as physical evidence, an amount Appellants claim is inconsistent with the intent to distribute, the jury could

not properly infer that Appellants conspired to distribute and to possess with intent to distribute cocaine base. Even assuming that we

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6 The 8.26 grams of cocaine base consists of the 6.18 grams the Government recovered in its raid of Hughes's residence and 2.08 grams

received in controlled purchases by confidential informants.

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would find 8.26 grams of cocaine base to be a personal-use quantity,

which is unlikely, see United States v. Lamarr , 75 F.3d 964, 973 (4th

Cir. 1996) (holding that possession of 5.72 grams of cocaine base

combined with other circumstantial evidence was sufficient to support

the jury's inference of intent to distribute), Appellants' contention is

meritless: Appellants would have us ignore the plethora of testimony

regarding the large quantities of cocaine base passing through

Hughes's residence. One coconspirator testified that he observed

between ten and twenty sales of cocaine base per evening from

Hughes's residence during the conspiracy period, that he saw cocaine

base being cooked on two occasions, and that he purchased two "$500

sack[s]" of cocaine base for resale in the Hughes residence, one sack

from Hughes and one sack from Jones. (J.A. vol. II, tr. at 353.)

Another coconspirator testified that Jones directed him on more than

five occasions to retrieve baggies containing $500 worth of cocaine

base from the basement, that he saw cocaine base being cooked and

then cut into rocks in Hughes's residence two or three times, and that

cocaine base was available for sale in Hughes's residence twenty-four

hours per day, seven days per week. This and other testimony at trial

establishes that a rational jury could find that large amounts of

cocaine base were being distributed from Hughes's residence7 and,

thus, infer that Appellants had the requisite intent to distribute.

Appellants also contend that even if the testimony adduced at trial

establishes the existence of individual cocaine base sales, the Government offered no evidence from which a jury could rationally infer the

existence of a conspiratorial agreement between Appellants. Again,

Appellants' argument simply ignores the testimony of the Government's witnesses. One coconspirator testified that Jones was the

second-in-command to Hughes in an extensive conspiracy to distribute drugs from Hughes's residence. In a controlled buy, one witness

testified that she saw Hughes provide Jones with the cocaine base she

bought from Jones. Another witness related that Hughes gave him a

"cookie" of cocaine base, asked him to cut it, and instructed him to

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7 Government witnesses testified that customers expected to receive

approximately one gram of cocaine base for $100 and that each cooking

involved at least one ounce of cocaine base. At sentencing, the district

court found by a preponderance of the evidence 328.08 grams of cocaine

base attributable to Hughes and 266.08 grams to Jones.

 9
give the resulting pieces of cocaine base to Jones. This testimony,

combined with the facts that Jones and Hughes both resided in the

same house, sold cocaine base from that house, and stored the cocaine

base they sold in the basement of that house, provides substantial evidence from which a rational jury could infer the existence of an agreement between Hughes, Jones, and others to produce, store, and

distribute cocaine base. Therefore, we reject Appellants' claim that

their conspiracy convictions were not supported by substantial evidence.

IV.

Finally, Hughes claims that the district court clearly erred in concluding that Hughes was the "organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive."

See U.S.S.G. § 3B1.1(a). In determining whether a participant is an

organizer or leader of a criminal activity, the court should consider

such factors as:

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment

of accomplices, the claimed right to a larger share of the

fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority exercised

over others.

Id., comment. (n.4). We review the district court's determination of

Hughes's role in the offense for clear error. See United States v.

Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert. denied, 116 S.

Ct. 1558 (1996).

Contrary to Hughes's assertions, the district court's finding is supported by the evidence offered by the Government at trial. Witnesses

for the Government testified that Hughes was the leader of the conspiracy, that Hughes purchased powder cocaine that was converted

into cocaine base and later distributed by other dealers, that cocaine

base was manufactured, stored, and sold in Hughes's residence, and

that Hughes supplied other dealers with cocaine base. Regarding the

number of participants, evidence at trial established that Jones,

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Ziegler, Lewis, Westmoreland, Hughes, Jr., and others participated

with Hughes in the criminal activities of the conspiracy. Based on this

evidence, we hold that the district court's finding is not clearly erroneous.

V.

In summary, we conclude that Jones is not entitled to the protection

he asserts under Kastigar; therefore, we hold that the Government

was not required to demonstrate a legitimate, independent source for

the evidence offered against him at trial. Reviewing the sufficiency

of the evidence, we conclude that it was sufficient to sustain Appellants' conspiracy convictions beyond a reasonable doubt. Finally, we

hold that the district court did not clearly err in finding Hughes to be

the leader of a criminal activity that involved five or more participants

under U.S.S.G. § 3B1.1. We have carefully examined Appellants'

remaining assignments of error and conclude that they are without

merit.8 The judgment of the district court is affirmed.

AFFIRMED

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8 Appellants raised the following additional claims in their brief: (1) the

Government improperly enhanced the credibility of certain witnesses by

introducing the witnesses' plea agreements into evidence; (2) blacks

were systematically excluded from the jury in violation of Appellants'

Sixth Amendment rights; (3) the Government improperly struck a black

juror from the venire in violation of Batson v. Kentucky, 476 U.S. 79

(1986); (4) the district court erred in denying Appellants' motion for a

mistrial after improper contact between a juror and a bailiff; (5) the district court erred in allowing the testimony of various witnesses; (6) the

district court erred in determining the amount of cocaine base attributable

to Appellants for purposes of sentencing; and (7) either the district court

in its discretion should have applied a proposed revision to U.S.S.G.

§ 2D1.1, which deletes the one-hundred-to-one powder to crack cocaine

ratio, or the district court should have declared the present version of

§ 2D1.1 to be unconstitutional.

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