________________________________________________

Nos. 95-2539MN, 95-2655MN, 95-2656MN, 95-2657MN,

95-2658MN, 95-2659MN, 96-1316MN

________________________________________________

_____________ *

*

No. 95-2539MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Calvin Lucien Delpit, also *

known as Monster, *

*

*

Appellant. * On Appeal from the United

* States District Court

* for the District of

_____________ * Minnesota.

*

No. 95-2655MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Dennell Malone, *

*

Appellant. *

*

*
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_____________ *

*

No. 95-2656MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Jermaine Dana Saunders, *

*

Appellant. *

*

*

_____________ *

*

No. 95-2657MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Zackarrie Emil Prado, *

*

Appellant. *

*

*

_____________ *

*

No. 95-2658MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Lavern Thomas, *

*

Appellant. *

*

*
*The Hon. Bruce M. Van Sickle, United States District Judge

for the District of North Dakota, sitting by designation.

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_____________ *

*

No. 95-2659MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Jai Anthony Jones, *

*

Appellant. *

*

*

_____________ *

*

No. 96-1316MN *

_____________ *

*

United States of America, *

*

Appellee, *

*

v. *

*

*

Chanise Janelle Lynn, *

*

Appellant. *

___________

 Submitted: May 15, 1996

 Filed: August 28, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN

SICKLE, District Judge. *

___________
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RICHARD S. ARNOLD, Chief Judge.

A jury convicted the seven defendants of various crimes, including

interstate murder-for-hire, 18 U.S.C. § 1958(a), arising out of a Twin

Cities-based drug conspiracy and gang rivalry. They received prison

sentences ranging from 97 months to life. The defendants challenge their

trial, convictions, and sentences. We reject most of these challenges.

We agree, however, with Chanise Lynn and Zackarrie Prado that their

interstate murder-for-hire convictions must be reversed. They may well

have taken part in a murder plot, but the government did not prove they

violated federal law. Finally, we remand Saunders's case for resentencing

because the murder-for-hire plot of which he was a leader or organizer did

not involve five or more "participants." U.S.S.G. § 3B1.1(a). 

I.

The jury found that the defendants all participated in the drugdealing and strong-arm tactics of a Twin Cities gang called the Shotgun

Crips. Dennell Malone and Jermaine Saunders were the ringleaders of the

operation. They imported cocaine from California, for re-sale in

Minnesota, through their source, Kenneth Washington (who apparently remains

a fugitive). The operation included couriers who smuggled procaine (a

cutting agent used to make crack) from California to Minnesota; underlings

who helped convert cocaine powder into crack; and middle-men who bought

crack from the operation and sold it to others. And in August 1994, the

operation employed the services of Calvin "Monster" Delpit, a Los Angelesbased hitman, to intimidate a rival gang and competitor in the Twin Cities

drug market.

We describe the evidence against the individual defendants in more

detail below. For now, we will simply summarize the case against the

Malone/Saunders operation. The case grew out of an investigation into the

Los Angeles Shotgun Crips' Minnesota
 All three young men pleaded guilty to drug-related offenses. 1

See United States v. D.A.M., 69 F.3d 542 (8th Cir. 1995). 

-5-

outreach efforts. Beginning in May 1994, government agents began

wiretapping telephones used by Larry Thomas, and they intercepted coded

conversations about drug-dealing. These conversations led the agents to

one of Thomas's customers, Tim Nelson, who agreed to cooperate with the

investigation.

Thomas's drug source, the wiretaps revealed, was the Malone/Saunders

operation, and Thomas owed the operation a large sum of money. On June 7,

the police observed as Thomas passed a paper bag to Malone and Saunders

during a pre-arranged money drop. That night, Malone and Saunders told

Thomas he hadn't paid all the money he owed. Malone also tried to sell

Thomas a cellular phone, which, he suggested, would help them avoid

wiretaps. Thomas continued to negotiate with Washington and Malone to

purchase more drugs, but because Thomas was so far behind in his payments,

they cut him off. Thomas continued his relation with the operation,

though, until mid-July, when he caught on that they were being

investigated. 

Malone and Saunders, however, did not quit their drug-dealing

activities. That same June, Malone was using three juveniles, including

his younger brothers, to sell drugs for him. And in August, the

1

government intercepted phone calls between Saunders and Washington

concerning a 15.6 kilogram cocaine shipment that had been intercepted in

Utah. The calls revealed how Malone had set up the shipment and recruited

the failed courier. The calls also suggested that at least one other

significant drug shipment had made it through to Minnesota. 

That same August, the government learned that Malone and Saunders had

hired Calvin Delpit, an L.A. hitman, to come to Minnesota and kill members

-- no one in particular, apparently --
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of the Shotgun Crips' rival gang, the Vice Lords. On August 26, Saunders

suggested that a local maternity ward would be a good place to catch one

prospective victim (a new father) unaware. Malone and Saunders then

arranged for guns and a driver for Delpit so he could "put some work on

somebody." Chanise Lynn drove Delpit around that night, and the next, but

they couldn't find anyone to kill. Delpit called Saunders to tell him that

he and Lynn had found some potential victims, but the victims had seen him

creeping up to do the hit and had escaped. Saunders urged Delpit to keep

trying, and agreed to send a partial payment of $1,500 to Delpit's wife in

California. Saunders then outlined a new plan: Delpit would follow a lead

car which would flash its brake lights to indicate vulnerable Vice Lords

nearby. The police overheard Saunders's plan and responded with round-theclock surveillance on Delpit. 

The next day, August 28, Prado called Saunders to complain that he'd

seen Vice Lords driving by his mother's house. Saunders told Prado he'd

better kill the Vice Lords before they got him first. Prado suggested they

could ambush the Vice Lords that afternoon at a concert in downtown

Minneapolis, and Saunders put Prado in touch with Delpit. A little later,

Prado picked up Delpit, and then Malone. The group then split up into two

cars, with Prado and Malone in the lead and Delpit following by himself.

The police, concerned that the drive-by plan was about to go off, stopped

the cars. Delpit tried to escape. He pulled his gun, pointed it at an

officer, then threw the gun away, and ran off. He was captured, and his

gun was recovered. A second gun was found in his car. Malone and Prado

were released because they were unarmed. Later, the police overheard phone

conversations confirming that Prado, Malone, and Delpit had been planning

to do a drive-by shooting when they were apprehended.

Meanwhile, the operation's drug activities continued. A few days

later, Saunders sent Chanise Lynn to California to pick up
 Malone, Saunders, and Delpit were charged in Count 3 with use 2

of firearms in connection with a crime of violence, 18 U.S.C.

§ 924(c)(1); Delpit was charged in Count 4 with being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1); Saunders was

charged in Count 5 with possession with intent to distribute

cocaine, 21 U.S.C. § 841(a)(1), in Count 6 with use of firearms in

connection with drug trafficking, 18 U.S.C. § 924(c)(1), and in

Count 15 with obtaining cellular telephone services by fraud, 18

U.S.C. § 1029(a)(1); Malone was charged in Counts 9 and 8 with

aiding and abetting possession with intent to distribute and

distribution of cocaine base, 21 U.S.C. §§ 841(a)(1), in Count 10

with using minors in drug trafficking, 21 U.S.C. § 861(a)(1), and

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some procaine. Saunders asked Jai Jones, who was in Los Angeles, to help

Lynn get the procaine, and to accompany her back to Minnesota. Jones and

Lynn arrived back in Minnesota with two black bags. Prado met them at the

airport, dropped Lynn off at her house, and then he and Jones delivered the

procaine to Malone and Saunders. While the police were getting a warrant

to search the house where Malone and Saunders had divided up the procaine

and were getting ready to "cook" the crack, people started leaving the

house. The police stopped Jones and Prado, and found seven pounds of

procaine in their car. Malone and another left next, and the police found

seven more pounds of procaine, a scale, a clone cellular phone, and almost

$5,000 in cash in the car. Finally, Saunders and two others left. The

police tried to stop them and, during a high-speed chase, Saunders threw

two guns and a backpack out of the car. The police eventually caught the

car, arrested Saunders, and found the guns (both loaded). They also found

three more pounds of procaine and a scale in the car. The next day,

someone turned the backpack over to the police. It contained another clone

cellular phone, 1.5 kilograms of powder cocaine, wrapped in a special

fashion, just like the cocaine shipment that had been intercepted in Utah.

The government brought a fifteen-count indictment against the

defendants. All but Delpit were included in Count 7, which alleged a

conspiracy to distribute crack cocaine. 21 U.S.C. § 846. Delpit, Malone,

Saunders, Lynn, and Prado were charged with interstate travel with the

intent to commit murder-for-hire, 18 U.S.C. § 1958(a), and conspiracy to

violate § 1958(a). The rest of the counts charged different defendants

with various drugs-, fraud-, and weapons-related crimes. All the

2
in Count 13 with obtaining cellular telephone services by fraud, 18

U.S.C. § 1029(a)(1); Lynn was charged in Count 11 with possession

with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1);

Malone, Saunders, Lynn, and Thomas were charged in Count 12 with

conspiracy to engage in drug trafficking, 21 U.S.C. § 846. 

-8-

appellants but Prado
 Order (Dec. 30, 1994), adopted by Memorandum and Order (Jan. 3

18, 1995). 

-9-

were convicted on all counts against them; the jury acquitted Prado on the

drug-conspiracy charge (Count 7). Malone and Saunders received life

sentences; Delpit, 19 years; Thomas, 15 years and three months; Jones, nine

years and four months; Lynn, nine years; and Prado, eight years and one

month.

 II.

This is a complicated case. Many of the defendants' claims overlap

with others'; some arguments are raised by only one or a few. We think

this opinion will be easier to follow if organized by shared claims and

arguments instead of by the individual defendants bringing them.

A. Severance

Six of the seven defendants -- all but Delpit -- insist that the

District Court should not have joined their cases with the others' and

should have granted their motions to sever. The District Court found that

because "the conspiracies alleged are interconnected and encompass each of

the individual substantive counts, joinder of the defendants and counts is

proper." We will reverse the District Court's denial of the severance

3

motions only
 Memorandum and Order, at p. 4 (Jan. 18, 1995). 4

-10-

if it abused its discretion, resulting in definite prejudice. United

States v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995), cert. denied, 116 S.

Ct. 1449 (1996). In this case, the Court did not abuse its discretion, nor

have the defendants identified specific prejudice. 

Under Fed. R. Crim. P. 8(a), offenses may be joined if they are of

the same or similar character, or are based on the same act or transaction,

or on different acts or transactions which are part of a "common scheme or

plan." Defendants may be joined if "they are alleged to have participated

in the same act or transaction or in the same series of acts or

transactions constituting [the] offense . . .." Fed. R. Crim. P. 8(b).

See Darden, 70 F.3d at 1526-27 (joined defendants and counts were factually

interrelated). Importantly, not every defendant joined must have

participated in every offense charged. United States v. Jones, 880 F.2d

55, 62-63 (8th Cir. 1989). 

We agree with the District Court that joinder was proper in this

case. All the defendants but Delpit were charged with the same, underlying

drug conspiracy (Count 7), and the government alleged that Malone and

Saunders hired Delpit to do a contract killing to increase their

operation's prestige and profits. It doesn't matter that Larry Thomas and

Jai Jones had nothing to do with the murder-for-hire plot, or that Delpit

was not indicted for the drug conspiracy. As the District Court observed,

when violence is part of the conspiracy's modus operandi, "charges stemming

from that violence are properly joined with the conspiracy charges, even

if not all members of the conspiracy participated in the violence." 

4

Even when Rule 8(a) permits joinder, a trial court may order separate

trials on different counts, or sever certain defendants'
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cases from others', to protect defendants' fair-trial rights. Fed. R.

Crim. P. 14; Darden, 70 F.3d at 1527. We read Rules 8 and 14 in favor of

joinder. Id. at 1528 ("[A] joint trial `gives the jury the best

perspective on all of the evidence and therefore increases the likelihood

of a correct outcome.'"); Zafiro v. United States, 506 U.S. 534, 537 (1993)

(joint trials "avoid[] the scandal and inequity of inconsistent verdicts").

The presumption against severing properly joined cases is strong. It is

not enough that a defendant thinks his chances for acquittal would be

better in a separate trial, Zafiro, 506 U.S. at 540. See Hollins v. Dept.

of Corrections, 969 F.2d 606, 608 (8th Cir. 1992) (noting "heavy burden").

Saunders complains because Delpit told the jury that he was a drug

dealer -- not a killer -- and that he came to the Twin Cities to broker

drug deals. True, Delpit's defense did not put Saunders and the others in

the best light. But co-defendants are often hostile to one another, and

one will try frequently to "point the finger," to shift the blame, or to

save himself at the expense of the other. "Antagonistic" defenses require

severance only when "`there is a danger that the jury will unjustifiably

infer that this conflict alone demonstrates that both are guilty.'" United

States v. De Luna, 763 F.2d 897, 921 (8th Cir.) (citation omitted)

(emphasis added), cert. denied, 474 U.S. 980 (1985); see also Zafiro, 506

U.S. at 538-41; Darden, 70 F.3d at 1526. That danger was not present in

this case. 

The self-described "minor players" -- Thomas, Prado, Jones, and Lynn

-- argue that they were prejudiced by the extra courtroom security, the

gang affiliations and disruptive courtroom behavior of some defendants, the

spillover taint of the murder-for-hire charges and the evidence relating

to those charges, and by publicity and paranoia about "black gang-crime"

in the Twin Cities. We reject all these claims. Severance is not required

merely because evidence which is admissible only against some defendants
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may be damaging to others, United States v. Blum, 65 F.3d 1436, 1444 (8th

Cir. 1995), cert. denied, 116 S. Ct. 824 (1996); or because co-defendants

engage in disrespectful behavior in court, cf. United States v. Garrett,

961 F.2d 743, 745-46 (8th Cir. 1992) (odd and disruptive behavior of codefendant's counsel was not so prejudicial as to require severance); or

because the joint trial requires enhanced courtroom security. See Blum,

65 F.3d at 1444. Nor is it enough for a defendant to claim, as Larry

Thomas does here, that he needed a separate trial to call a co-defendant

as a witness. He must show (and he has not) that it is likely his codefendant actually would have testified and that this testimony would have

been exculpatory. United States v. Anthony, 565 F.2d 533, 538 (8th Cir.

1977), cert. denied, 434 U.S. 1079 (1978). 

The Supreme Court has made it clear that the risk of prejudice posed

by joint trials is best cured by careful and thorough jury instructions

like those given by the District Court in this case. See Zafiro, 506 U.S.

at 540-41. The District Court repeatedly instructed the jury -- using an

instruction drafted by the defense -- that the murder-for-hire evidence was

admissible only against the defendants charged with interstate murder-forhire. The jury acquitted Prado and one other defendant on the drugconspiracy charge, which shows they were able to separate out the drugrelated evidence from the murder-related evidence. See United States v.

Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995), cert. denied, 116 S. Ct. 966

(1996). The evidence simply does not support Thomas's charge that the jury

saw and judged the defendants as a "nine-headed monster." 

A defendant must show actual prejudice before we will reverse a

denial of a motion for severance. None of the defendants has made such a

showing, and the District Court did not abuse its discretion. We think the

Court did a good job managing this very difficult case. In re-affirming

the law's preference for joint trials, we do not endorse guilt by

association. Instead, we
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presume, as we must, that juries can and do follow instructions

conscientiously, evaluate evidence carefully, and judge defendants

individually.

B. Sergeant Murphy's Interpretation of the Coded Conversations

The government's investigation and prosecution depended heavily on

wiretapped telephone conversations; about 100 of these conversations were

introduced at trial. These conversations were tricky for at least three

reasons. First, many of the speakers used slang, or street jargon (e.g.,

"straps" for "guns" and "mix" for "procaine"). Second, many of the

conversations were in code (e.g., "let's go play ball" for "let's do a

cocaine deal"). Third, the speakers often stuck the syllable "iz" in the

middle of words, resulting in a kind of "pig latin" (e.g., "kiz-ar" means

"car," and "shiz-ootin" means "shooting").

Sergeant James Murphy prepared transcripts of the wiretap evidence

with translations of the "pig latin" words in brackets and, at trial, he

identified most of the taped conversations. He also gave the jury his

opinion about the meaning of certain code words and slang terms. Lynn,

Delpit, Jones, and Saunders argue that Sergeant Murphy's testimony went

beyond interpretation to speculative, prejudicial, testimony. As Jones

puts it, Sergeant Murphy's explanations and translations were only his

opinions that the defendants were guilty. The defendants also insist that

Sergeant Murphy's testimony was unnecessary, because the jury could easily

have interpreted the tapes on its own, and they contend that the District

Court committed reversible error by allowing the testimony. We disagree.

Saunders cites the following exchange as an example of Sergeant

Murphy's allegedly over-creative interpretation:

[Thomas's Voice]: "You at least have a shade over some
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motherf*****, man!"

Sergeant Murphy interpreted this statement: 

I don't believe he liked . . . having to meet out

in the open like that.

Delpit provides another example:

[Saunders's Voice] The ni**** got my, um, I can't really even

like let ah, him handle his business cuz I

can't get to no straps. He got like two of my

straps. You know what I'm saying?

Sergeant Murphy, when asked what this meant, said:

Dennell Malone has two of Jermaine Saunders' guns.

He can't let Monster go out and take care of the

business that he was up there for[,] to shoot some

Vice Lords.

A third example: Saunders said, on tape, "He was fittin to liz-iz-iz-ay

some down." Sergeant Murphy testified that to "lay some down" meant to

kill someone. And when asked whom Saunders was talking about, Sergeant

Murphy said, "The Vice Lords."

It is well established that experts may help the jury with the

meaning of jargon and codewords. See, e.g., United States v. Lowe, 9 F.3d

43, 47 (8th Cir. 1993), cert. denied, 510 U.S. 1181 (1994). There is no

more reason to expect unassisted jurors to understand drug dealers' cryptic

slang than antitrust theory or asbestosis. See United States v. Scavo, 593

F.2d 837, 844 (8th Cir. 1979) (gambling conversations which were "virtually

incomprehensible to the layman, are fraught with meaning to a person

familiar with gambling enterprises"). We have no doubt that Sergeant

Murphy is an "expert" or that he was able to assist the District Court and
 It appears the defendants don't really believe this either. 5

Prado's brief notes that Sergeant Murphy had to interpret

"Saundersease," a "combination of hybrid pig latin and street slang

which is difficult to understand until one is accustomed to it."

Jones concedes as much in his brief as well.

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explain the defendants' slang to the jury. The argument that Murphy was

unqualified because he lacks degrees or advanced training in the field is

silly. Sergeant Murphy has learned drug dealers' jargon through nearly 30

years of on-the-job experience, the best education there is for this type

of thing. See United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.

1987) ("[H]ard-core drug trafficking scarcely lends itself to ivied halls.

In a rough-and-ready field such as this, experience is likely the best

teacher.") And, after reviewing many of the wiretapped conversations, we

cannot agree with the defendants that the tapes were so clear that Sergeant

Murphy's testimony was unnecessary. 

5

That said, we agree that Sergeant Murphy appears on occasion to have

gone beyond merely translating straightforward terms. But even if the

Sergeant's testimony did, at times, "go [ ] beyond the plain meaning of the

recorded conversation[s]," we must still decide whether there is a

"significant possibility" that this testimony had a "substantial impact on

the jury." United States v. Sanchez-Sotelo, 8 F.3d 202, 210-211 (5th Cir.

1993) (agent's testimony went beyond the plain meaning of the recorded

conversation, but jury could have inferred the defendant's guilt from other

evidence), cert. denied, 114 S. Ct. 1410 (1994). We are sure it did not.

Sergeant Murphy's occasional elaborations referred to or were supported by

other evidence. For example, when Sergeant Murphy testified that "Monster"

was in town to "shoot some Vice Lords," this testimony was based on other

recorded conversations, also in evidence, about Delpit's having been

recruited to kill Vice Lords. See United States v. Fregoso, 60 F.3d 1314,

1328 (8th Cir. 1995) (defendant failed to prove prejudice because expert's

testimony about drug smuggling was
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similar in kind to other evidence). 

The District Court instructed the jury that it was not bound by the

opinion of any expert. See United States v. Daniels, 723 F.2d 31, 33 (8th

Cir. 1983) (any possibility of undue prejudice from expert's interpretation

of gambling jargon was removed by trial court's careful instructions)

(citing Scavo, 593 F.2d at 844). In fact, Delpit brought in an expert of

his own to dispute some of Sergeant Murphy's interpretations. We are

confident that Sergeant Murphy's occasionally expansive translations --

which were, again, grounded in other evidence -- did not have a

"substantial impact" on the jury. See Sanchez-Sotelo, supra; United States

v. Carrazana, 921 F.2d 1557, 1568 (11th Cir.) (any error in expert's

interpretation of defendants' slang was harmless), cert. denied, 502 U.S.

865 (1991); cf. United States v. Dicker, 853 F.2d 1103, 1110-11 (3d Cir.

1988) (where recorded conversations were perfectly clear, and expert's

testimony repeatedly supplemented the conversations, testimony was

prejudicial and required a new trial).

C. Other Evidence Issues

 Several defendants raise other evidence-related claims. We will not

overturn a trial court's decision concerning the admissibility of evidence

absent abuse of discretion. See, e.g., United States v. Roulette, 75 F.3d

418, 423 (8th Cir. 1996).

1. Delpit's Prior Felony Convictions

Calvin Delpit was charged, in Count 4 of the indictment, with being

a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The prior

felonies alleged were credit-card fraud and rape. Delpit offered to

stipulate to the existence and number of prior felonies, but the government

declined. Delpit therefore decided to plead guilty to the felon-inpossession count. He now claims "[h]e had
 Delpit's reliance on United States v. Poore, 594 F.2d 39 (4th 6

Cir. 1979), is misplaced. In Poore, the government accepted the

defendant's stipulation. Id. at 40-41. The court held that,

because the government accepted the stipulation, the district court

erred by not redacting references to the stipulated offense from

the indictment. Poore has nothing to do with whether the

government must accept a defendant's offer to stipulate. See

Poore, 594 F.2d at 41 (noting that government "is not required to

accept defendant's proffered general stipulation of conviction of

felony . . . in lieu of offering proof thereon") (citing United

States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975), cert. denied,

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no other choice" and argues that the District Court abused its discretion

by not ordering the government to stipulate to his prior offenses or

granting his motions to sever or to strike.

As Delpit candidly admits, "the government is not bound by . . . an

offer to stipulate and . . . it is not error to allow the government to

introduce more than one conviction in a case where only a single conviction

is necessary . . .." United States v. Garner, 32 F.3d 1305, 1311 (8th Cir.

1994), cert. denied, 115 S. Ct. 1366 (1995). He argues, though, that the

Court did not adequately consider the danger his prior rape conviction

posed to his chances for an impartial verdict on the murder-for-hire

charges. In Delpit's view, the Court "forced" Delpit to choose between an

unfair trial on all the charges against him and giving up his jury-trial

right on the felon-in-possession count.

Delpit decided it was in his best interest to plead guilty instead

of going to trial. No doubt, this was a difficult decision, but it was no

different from the hard choices made by thousands of defendants every day.

Perhaps, in an extraordinary case, a trial court's allowing the government

to refuse to stipulate to a prior conviction would create such clear and

compelling prejudice as to be an abuse of discretion, see United States v.

Bruton, 647 F.2d 818, 825 (8th Cir.) ("[A] case might be imagined where

proof of a plurality of convictions would be prejudicial . . .."), cert.

denied, 454 U.S. 868 (1981); Romano v. Oklahoma, 114 S. Ct. 2004, 2013

(1994) (O'Connor, J., concurring) ("It may well have been better practice

for the State to agree to accept petitioner's stipulation offer . . .."),

but this is not such a case. 

6
429 U.S. 925 (1976)).

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2. Delpit's Nickname

Delpit's unfortunate nickname is "Monster." Before trial, he moved

to strike this nickname from the indictment. The District Court denied

this motion, correctly noting that "the use of this name is necessary to

fully identify . . . Delpit." Delpit now claims he was denied a fair trial

because the government's "continued and repeated reference to his nickname

was tantamount to testimony about his character . . .." We disagree. In

some cases, the use of a defendant's irrelevant nickname to suggest his bad

character or unsavory proclivities may be prejudicial, see, e.g., United

States v. Williams, 739 F.2d 297, 299-300 (7th Cir. 1984), but this is not

such a case. There was no way for the jury to avoid hearing Delpit's

nickname, because he was referred to in the wiretaps almost exclusively as

"Monster." 

3. Mention of Murdered Police Officers

In one taped phone call, Saunders and Malone discussed how Malone,

Delpit, and Prado were stopped by the police on their way to do a drive-by

shooting. Malone complained that the officers who stopped them had their

badge numbers covered with black tape. He said the tape was on the badges

because of the "two clowns" (police officers) who "got smoked over on the

other side of town." Malone also said the officers had harassed him, and

that he was going to tell his lawyer that the officers had hidden their

badge numbers. When this tape was played at trial, Sergeant Murphy

explained that the officers had small black ribbons on their badges

honoring two officers who had been killed recently in the line of duty.

Prado
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and Jones now argue that the District Court abused its discretion by

allowing Sergeant Murphy to explain the ribbons. They claim that the

mention of the two dead police officers was far more prejudicial than

probative. Jones says that he was particularly prejudiced because he had

nothing to do with the murder-for-hire plot. We disagree. Even if the

reference to the murdered officers as "clowns" could have reflected badly

on Malone and Saunders, we believe this isolated incident did not prejudice

Prado or Jones. 

4. Co-conspirators' Statements

Dennell Malone states that the District Court abused its discretion

in admitting statements by his co-conspirators. This claim is poorly

developed; it appears Malone is simply restating his argument that his

trial should have been severed from his co-defendants'. He suggests that

"because there were multiple conspiracies" (which, he argues, should have

been tried separately) "the trial court should have been more scrupulous

in determining the admissibility of what would otherwise be hearsay and

give meaningful cautionary instructions." We do not know which statements

Malone is objecting to; he identifies none. We can only note, once again,

that, as Malone admits, the District Court was careful to instruct the jury

that certain evidence was admissible only on the murder-for-hire counts,

or against the murder-for-hire defendants, and not on the drug counts.

 

5. Guns Evidence

Jai Jones contends he was denied a fair trial because the District

Court admitted various guns into evidence, guns which had nothing to do

with the case against him. True, guns were admitted into evidence which

had nothing to do with Jones, but the government never argued otherwise.

And just because the guns were not relevant to the charges against Jones

does not mean they were not admissible against his co-defendants. It is

a simple fact of
-20-

joint trials that some evidence is relevant to and admissible against only

some defendants. The proper response is to instruct the jury, as the

District Court did in this case, that the evidence -- here, the guns -- is

admissible against some defendants but not others. In any event, Jones has

not proved, or even alleged with specificity, any prejudice, so there was

no abuse of discretion.

D. Use of Transcript in Jury Deliberations

Jermaine Saunders argues that the District Court abused its

discretion by allowing the jury to use transcripts of the wiretapped

conversations during trial and deliberations. First, Saunders complains

that the government did not give the defendants enough time to evaluate the

transcripts to insure their accuracy. Next, he says that the transcripts

were not "objectively verifiable" translations of the recordings; instead,

they included the government's "prefabricated subjective interpretations

of conversations that were recorded in English." Saunders also insists

that there was no need for the transcripts, because the tapes themselves

were clear and audible, and the speakers were identified in Sergeant

Murphy's testimony. See United States v. McMillan, 508 F.2d 101, 105 (8th

Cir. 1974) ("[T]he need for . . . transcripts is generally caused by two

circumstances: inaudibility of portions of the tape . . . or the need to

identify the speakers."), cert. denied, 421 U.S. 916 (1975). In Saunders's

view, the transcripts distorted, and distracted the jury's attention from

the real evidence -- the tapes themselves.

It is well settled that the jury may use transcripts of wiretapped

conversations during trial and deliberations. See United States v. Byrne,

83 F.3d 984, 990 (8th Cir. 1996); United States v. Riascos, 944 F.2d 442,

443-44 (8th Cir. 1991); McMillan, supra. Saunders has not identified any

particular inaccuracies in the transcripts. It was not "inaccurate" for

the government to include, in brackets, translations of the "pig latinisms"

on the
-21-

tape (i.e., to take out the "iz" syllable, when appropriate). We also note

that the defense lawyers prepared transcripts of their own, which were also

given to the jury. For all we know, the jury never even looked at the

government's transcripts, only at the defendants'. Most importantly, the

District Court instructed the jury, diligently and repeatedly, as it was

required to do, that the tapes themselves, not the transcripts, were

evidence. See United States v. Foster, 815 F.2d 1200, 1203 (8th Cir.

1987). We assume the jury did as it was told.

E. Jury Instructions

Chanise Lynn and Dennell Malone object to the District Court's

reasonable-doubt instruction, and Jai Jones and Malone contend that the

District Court should have given a multiple-conspiracy instruction. We

reject both these claims.

1. Reasonable-Doubt Instruction

The District Court instructed the jury as follows:

Reasonable doubt is a doubt based on reason and

common sense and not the mere possibility of

innocence. A reasonable doubt is the kind of doubt

that would make a reasonable person hesitate to

act.

Proof beyond a reasonable doubt, therefore, must be

proof of such a convincing character that a

reasonable person would not hesitate to rely and

act upon it in the most important of his or her own

affairs. However, proof beyond a reasonable doubt

does not mean proof beyond all possible doubt.

Lynn and Malone object to the "mere possibility of innocence" language.

Lynn argues that the reasonable-doubt instruction "misdefined the

government's burden" by suggesting a "more likely than not," or "clear and

convincing," rather than a "beyond a
-22-

reasonable doubt," standard of proof. Malone raises similar objections.

The "beyond a reasonable doubt" standard is a bedrock due-process

requirement, but, like most constitutional standards, it does not come in

a ready-made package. See Victor v. Nebraska, 114 S.Ct. 1239, 1243 (1994)

("[T]he Constitution does not require that any particular form of words be

used in advising the jury of the government's burden of proof.") We have

repeatedly rejected challenges to the "mere possibility of doubt" language

used in this case. See United States v. Simms, 18 F.3d 588, 593 (8th Cir.

1994); United States v. Mabry, 3 F.3d 244, 249 (8th Cir. 1993), cert.

denied, 114 S. Ct. 1403 (1994); see also Victor, 114 S. Ct. at 1248-49

(rejecting challenge to "not a mere possible doubt" language). The

instruction used in this case strikes us as a helpful and accurate way of

communicating the correct standard of proof to the jurors. After all, it

is possible to have doubts that are not reasonable. 

2. Multiple-Conspiracy Instruction

Jones and Malone insist that there were three drug conspiracies

involved in this case, and that the District Court erred in refusing to

give a multiple-conspiracy instruction. There may have been common actors,

he argues, but there were several separate criminal agreements. Malone

urges a similar argument. A trial court should give a multiple-conspiracy

instruction when, and only when, the evidence supports it. United States

v. Jackson, 67 F.3d 1359, 1367 (8th Cir. 1995), cert. denied, 116 S. Ct.

1684 (1996). 

The Malone/Saunders operation involved several players with different

tasks, but Jones and Malone point to no evidence that undercuts the

government's theory that these players and tasks were part of a single

conspiracy, the one charged in Count 7. See
-23-

United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir. 1994) (although

"`various defendants entered the conspiracy at different times and

performed different functions, the conspiracy had one criminal objective:

to sell large quantities . . . [of] drugs'"); United States v. Lucht, 18

F.3d 541, 553 (8th Cir.) (separate transactions do not prove separate

conspiracies), cert. denied, 115 S. Ct. 363 (1994). There was no need for

a multiple-conspiracy instruction.

E. Sufficiency of the Evidence: Interstate Murder-for-Hire

Saunders, Thomas, Prado, Jones, and Lynn all claim that the evidence

was insufficient to support their convictions. In this Part, we discuss

only Saunders's, Lynn's, and Prado's challenges to their murder-for-hire

convictions (Counts 1 and 2); we discuss the other sufficiency-of-theevidence arguments in Part G, infra. As the defendants are well aware, it

is hard to win on an insufficiency claim: they must show that no

reasonable jury could have found them guilty beyond a reasonable doubt.

We review and interpret the evidence in the light most favorable to the

jury's verdict. See United States v. Horne, 4 F.3d 579, 587, 589 (8th Cir.

1993), cert. denied, 510 U.S. 1138 (1994).

The defendants face long prison terms. Although we will not recite

all the evidence introduced at trial, we have reviewed that evidence

closely and given careful consideration to the defendants' arguments. For

the reasons outlined below, we affirm the convictions of Jai Jones,

Jermaine Saunders, and Larry Thomas. We also affirm Chanise Lynn's

possession-with-intent-to-distribute conviction. We reverse Lynn's and

Zackarrie Prado's murder-for-hire convictions. Lynn and Prado may well

have aided and abetted an attempted murder, and conspired to commit murder,

but these are not federal crimes. 

Our Constitution is a charter for a federal government of
-24-

limited powers, and under this charter the "States possess primary

authority for defining and enforcing the criminal law." Engle v. Isaac,

456 U.S. 107, 128 (1982). But the Constitution gives Congress the power

to regulate interstate commerce, U.S. Const., Art. I, § 8, cl. 3, and

§ 1958(a), which outlaws interstate murder-for-hire, is unquestionably a

valid exercise of this power. Section 1958(a) provides:

Whoever travels in or causes another (including the

intended victim) to travel in interstate or foreign

commerce, or uses or causes another (including the

intended victim) to use the mail or any facility in

interstate or foreign commerce, with intent that a

murder be committed . . . as consideration for the

receipt of, or as consideration for a promise or

agreement to pay, anything of pecuniary value . . .

[is guilty of a crime against the United States].

So, to convict the defendants under this statute, the government had to

prove that they (1) travelled or caused another to travel in interstate

commerce, (2) with the intent that a murder be committed, (3) for hire.

United States v. McGuire, 45 F.3d 1177, 1186 (8th Cir.), cert. denied, 115

S. Ct. 2558 (1995). One can also be convicted, of course, for conspiring

or aiding and abetting in connection with this offense.

This statute is relatively straightforward, both in what it prohibits

and in what it does not reach. It does not prohibit murder or attempted

murder. Instead, it outlaws using interstate-commerce facilities with the

intent that murder-for-hire be committed. Once the interstate-commerce

facility is used with the required intent the crime is complete. One who

travels or causes another to travel in interstate commerce with the

necessary
 Compare § 1958(a) with the Travel Act, 18 U.S.C. § 1952(a), 7

which provides in part:

(a) Whoever travels in interstate or foreign commerce or uses the

mail or any facility in interstate or foreign commerce, with intent

to-- 

(1) distribute the proceeds of any unlawful activity; or 

(2) commit any crime of violence to further any unlawful

activity; or

(3) otherwise promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or

carrying on, of any unlawful activity, 

and thereafter performs or attempts to perform--

(A) an act described in paragraph (1) or (3) [shall be

punished]; or 

(B) an act described in paragraph (2) [shall be

punished].

(emphasis added).

 "[Whoever violates the statute] shall be fined under this

8

title or imprisoned for not more than ten years, or both; and if

personal injury results, shall be fined under this title and

imprisoned for not more than twenty years, or both; and if death

results, shall be punished by death or life imprisonment, or shall

be fined not more than $250,000, or both." 18 U.S.C. § 1958(a).

-25-

murderous intent need not do anything else to violate the statute. See

7

McGuire, 45 F.3d at 1186-87. It is clear, moreover, that a defendant can

violate § 1958(a) without actually hurting or killing anyone, because the

statute provides for enhanced punishment when death or injury results from

the defendant's violation of the statute. If there were any doubt, it

8

would be dispelled by the clear legislative history:

The gist of the offense is the travel in interstate

commerce or the use of the facilities of interstate

commerce or of the mails with the requisite intent

and the offense is complete whether or not the

murder is carried out or even attempted.

S. Rep. No. 225, 98th Cong., 2d Sess. 306 (1984), reprinted in,
 The evidence suggested that Delpit had arrived in the Twin

9

Cities by August 24, and that Chanise Lynn was recruited as

Delpit's driver on August 26 and 27.

-26-

1984 U.S.C. Cong. & Admin. News 3182, 3485. 

1. Jermaine Saunders

To convict Saunders of violating § 1958(a), the government had to

prove that (1) Saunders caused Delpit to travel in interstate commerce, (2)

he or Delpit intended that a murder be committed in violation of Minnesota

law, and (3) the murder was to be committed for hire. McGuire, 45 F.3d at

1186. Saunders insists he was across town the day Delpit, Malone, and

Prado were plotting the drive-by shooting, and that the government's theory

of his role in the plot is based "solely and exclusively on Sgt. Murphy's

interpretation of several telephone conversations." In our view, though,

Sgt. Murphy's testimony provided ample evidence against Saunders. Saunders

recruited Delpit to come to Minnesota and kill Vice Lords; he was the one

to whom Delpit reported after his failed hit; he told Delpit to keep

trying, and agreed to send Delpit's wife a partial payment of $1,500; and

he organized the August 28 two-car assassination plan. It does not matter

whether he was "across town" when the murder was to take place. A

reasonable jury could have found that he caused Delpit to travel, with the

intent that Delpit would commit murder-for-hire, and also that he conspired

to violate § 1958(a).

2. Chanise Lynn

Ms. Lynn helped Delpit, at Saunders's request, seek out Vice Lords

to kill. By this point, though, the § 1958(a) violation was complete.9

Malone and Saunders had already caused Delpit to travel, and Delpit had

already travelled, with the requisite intent that a murder-for-hire be

committed. The government insists that
 We made clear the distinction between accessories after-the- 10

fact and aiders and abettors in United States v. Brown, 33 F.3d

1002 (8th Cir. 1994): "`The very definition of the crime

[accessory after the fact] also requires that the felony not be in

progress when the assistance is rendered because then [the person]

who renders assistance would aid in the commission of the offense

and be guilty as a principal.'" Id. at 1004 (quoting United States

v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972)); see United

States v. Innie, 7 F.3d 840, 852 (9th Cir. 1993) ("Unlike one who

aids or abets a crime . . . , an accessory after the fact does not

agree to commit the crime . . .."), cert. denied, 114 S. Ct. 1567

(1994).

-27-

"[t]he attempted murder-for-hire and the related conspiracy continued for

another week and Lynn played an integral role in it," but that does not

matter. Section 1958(a) is not a murder statute; it is a carefully-drafted

federal criminal law of constitutionally limited scope. 

Because the crime was complete when Delpit arrived in Minnesota, Lynn

did not--she could not--aid or abet the crime's perpetrators. If anything,

she was an accessory after the fact (for which she was not charged). As 10

Chief Judge Posner noted recently, Judge Learned Hand's "canonical"

definition of aiding and abetting requires "not only that the defendant

have aided his principal to commit a crime but also that he have wanted the

principal to succeed in committing it. Obviously this rules out . . .

cases in which the defendant was a mere accomplice after the fact . . .."

United States v. Ortega, 44 F.3d 505, 507 (7th Cir. 1995) (citing United

States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)); see Nye & Nissen v.

United States, 336 U.S. 613, 620 (1949) ("Aiding and abetting . . . states

a rule of criminal responsibility for acts which one assists another in

performing.") We regularly instruct juries that a person may be found

guilty of aiding and abetting if, before or at the time the crime was

committed, he knew the offense was being committed or was going to be

committed; he knowingly acted to encourage, aid, or cause the offense; and

he intended that the offense be committed. See Eighth
 This case is different from our recent decision in United

11

States v. Baker, 82 F.3d 273, 275-76 (8th Cir. 1996). In that

case, Baker, a police officer, extorted a payment from an arrested

motorist, who withdrew money from an automated teller machine (ATM)

to pay the bribe. Baker was convicted under the Travel Act, 18

U.S.C. § 1952(a), and argued on appeal that his act of extortion

lacked the required effect on interstate commerce. This Court

disagreed, noting that the ATM was a "facility in interstate or

foreign commerce," which Congress was entitled to regulate and to

protect, even from wholly intrastate activity. In Baker, the

defendant argued that the United States could not prosecute him

because there was no jurisdictional "hook," no "nexus" with

interstate commerce. In this case, though, the question is simply

whether or not the government introduced sufficient evidence to

permit a reasonable jury to conclude that the elements of a

§ 1958(a) violation had been proved against Lynn.

-28-

Circuit Model Jury Instructions § 5.01 & n.4 (West 1996) (citing United

States v. Jarboe, 513 F.2d 33, 36 (8th Cir.), cert. denied, 423 U.S. 849

(1975)); United States v. Duranseau, 26 F.3d 804, 809 (8th Cir.), cert.

denied, 115 S. Ct. 341 (1994). Lynn's conviction on Count 1 must be

reversed because the government presented no evidence suggesting that Lynn

aided and abetted Malone and Saunders in recruiting Delpit or that she

aided and abetted Delpit's interstate travel. 

It follows that Lynn's conviction for conspiracy to violate § 1958(a)

must also be reversed. To prove a conspiracy, the government needed to

prove an agreement, between at least two people, the objective of which was

to violate federal law. See United States v. Jenkins, 78 F.3d 1283, 1287

(8th Cir. 1996). Lynn joined the plot to kill Vice Lords after the object

of the conspiracy charged in Count 2 was accomplished. The government

presented no evidence suggesting that Lynn conspired to cause Delpit to

travel, or that she conspired with Delpit to travel, with the intent that

a murder-for-hire be committed. In the end, she may have been party to an

attempted murder in Minnesota, but that is not -- nor, standing alone,

could it ever be -- a federal crime.11
-29-

3. Zackarrie Prado

Prado was acquitted on the drug-conspiracy count (Count 7), but, like

Lynn, convicted of the interstate murder-for-hire charges (Counts 1 and 2).

Prado makes the implausible argument that the government's wiretap evidence

shows only that he was concerned about Vice Lords harassing his mother, not

that he had anything to do with an assassination scheme. We think it quite

clear that Prado, Malone, and Delpit planned to kill some Vice Lords, and

that Prado knew exactly what was going on. We reverse his murder-for-hire

convictions, though, for the reason discussed above: The government did

not prove that Prado committed a federal crime. As with Chanise Lynn, the

government failed to prove that Prado violated § 1958(a), or that he

conspired to do so, because there was no evidence that Prado had any

involvement in the murder plot before the federal crime with which he was

charged was complete.

F. Sufficiency of the Evidence: Other Convictions

Larry Thomas, Jai Jones, Chanise Lynn, and Jermaine Saunders all

argue that the evidence against them was insufficient to support their

drug-related convictions. We affirm the convictions.

1. Jermaine Saunders

Saunders contends that his conviction for using or carrying a firearm

during a crime of violence, 18 U.S.C. § 924(c)(1), must be reversed

because, under Bailey v. United States, 116 S. Ct. 501 (1995), he is not

liable for Delpit's gun use. We don't think Bailey helps Saunders. There

is no question but that Delpit carried a firearm during a violent crime;

in fact, he pointed it at a police officer before fleeing. Saunders was

convicted of aiding and abetting Delpit, 18 U.S.C. § 2, and therefore

"stepped into Delpit's shoes" for purposes of § 924(c)(1): "[T]he acts of

the principal become those of the aider and abettor as a matter of
-30-

law." United States v. Simpson, 979 F.2d 1282, 1284-86 (8th Cir. 1992)

(emphasis omitted), cert. denied, 507 U.S. 943 (1993); see Pereira v.

United States, 347 U.S. 1 (1954). Saunders claims he didn't know Delpit

was carrying a gun, but the jury, quite reasonably, found otherwise.

As for Count 8 (attempted possession with intent to distribute the

15.6 kilograms of cocaine seized in New Mexico), Saunders again insists

that Sgt. Murphy's testimony and the wiretap evidence are insufficient to

support his conviction. Saunders claims the government presented no

evidence connecting the New Mexico seizure to his alleged drug operation

in Minnesota. We disagree. To convict Saunders on this Count, the

government had to prove that he "intended to possess and distribute the

cocaine, and that he took a substantial step toward that goal . . .."

United States v. Searing, 984 F.2d 960, 964 (8th Cir. 1993). The jury

heard conversations between Saunders and Washington, and between Saunders

and Malone, discussing the seizure of the cocaine shipment they had

arranged and were expecting. Saunders told several people that he had been

hit with a loss of 15 "things" (kilograms of cocaine). The evidence

supported the jury's decision. 

2. Larry Thomas

Thomas contends that the evidence against him was insufficient to

support his convictions for conspiracy to distribute cocaine base (Count

7), 21 U.S.C. § 846, and distribution of cocaine base (Count 9), 21 U.S.C.

§ 841(a)(1). Regarding Count 9, Thomas says Tim Nelson's testimony that

Thomas sold him drugs was the only evidence against Thomas, and, therefore,

the jury's verdict was unreasonable. Nelson told the jury that Larry

Thomas was "one of the nicest persons that you would want to know," but he

also testified that he bought about 1.5 kilograms of crack from Thomas over

a six-month period. Thomas thinks the jury should not have believed

Nelson, and recites a 10-point litany why Nelson's
-31-

testimony is unreliable (e.g., Nelson was a paid informant, Nelson cut a

deal to avoid prosecution, Nelson did not wear a body wire, etc.). But,

as Thomas admits, these points came out, in one form or another, at trial,

and it is the jury's business whom it chooses to believe.

Next, Thomas claims his conspiracy conviction (Count 7) must be

reversed because the only evidence against him was (1) that a police

officer saw him and Malone exchange a bag (an exchange Thomas insists was

perfectly innocuous) and (2) coded phone conversations, none of which,

Thomas contends, connect him to a drug conspiracy. Thomas says the calls

were about women, sports, and a truck sale, not drugs. In the end, though,

Thomas is arguing that the jury was unreasonable for believing the

government's "spin" on the evidence instead of Thomas's. 

As we said above, we think the evidence against Thomas shows that he

was buying drugs from the Saunders/Malone operation and selling drugs to

others. The question remains, was he a part of the conspiracy charged in

Count 7 of this indictment? In this Circuit, a series of drug deals for

resale can prove a conspiracy to distribute. See United States v. Eneff,

79 F.3d 104, 105 (8th Cir. 1996). The jury could reasonably have concluded

that Thomas had an ongoing arrangement with Washington, Saunders, and

Malone that they would front him with drugs for resale. The jury heard

tapes in which Thomas and Saunders confirmed that the bag exchange

described above was a drug-related money drop. It heard Thomas ask for

more drugs from Malone and Saunders, and they heard Thomas rebuffed because

he was behind on his debt. And the jury heard tapes suggesting that

Washington, through Malone and Saunders, was Thomas's ultimate drug source.

Thomas argues that the bag exchange was not what the government said it

was, but the jury found otherwise. Thomas says that the various phone

calls don't mean what Sergeant Murphy said they meant, but the jury

believed Sergeant Murphy. Finally, as we discussed above, the evidence
-32-

proved that Thomas was selling drugs to others. We affirm the conviction.

3. Jai Jones

Jones was convicted of the Count 7 conspiracy and, like Thomas,

contends the evidence was insufficient to support his conviction. He says

his conviction was based solely upon his transportation of procaine, "a

lawful substance," and on approximately five telephone conversations with

Saunders about obtaining the procaine. In effect, Jones admits he

transported the procaine, but insists that he thought what he was doing was

legal. But the jury heard evidence that Jones talked in code about the

procaine; that he took precautions, on instructions from Malone, to avoid

being caught with it; and that he delivered it to Malone and Saunders, who

were waiting for the procaine so they could make crack. The jury also

heard evidence of Jones's experience with drug-dealing, and apparently

thought he knew exactly what the procaine was for. The evidence supports

the jury's verdict.

4. Chanise Lynn

Lynn also argues that the evidence does not support her conspiracy

conviction. We disagree. The evidence suggested that Lynn was a regular

courier for the Saunders/Malone operation; that she went to California, on

Saunders's orders, to get procaine; and that she occasionally kept

contraband and money for the conspiracy at her residence. A reasonable

jury could have found that Lynn knew of, and intentionally joined, the drug

conspiracy charged in Count 7. 

 

Chanise Lynn also contends the evidence does not support her

conviction for possession with intent to distribute crack. The government

found and seized 3.7 grams of crack -- 20 individually wrapped rocks -- at

her residence. At trial, Lynn simply denied
-33-

that the drugs were hers. She now argues that 3.7 grams is too small an

amount to support the inference that she intended to distribute the crack.

It is a close call, but we disagree. 

Possession of such a small amount of drugs, standing alone, is an

insufficient basis from which to infer intent to distribute. United States

v. Buchanan, 985 F.2d 1372, 1377 (8th Cir. 1993), cert. denied, 114 S. Ct.

2727 (1994). See United States v. Gordon, 923 F.2d 123, 125-26 (8th Cir.

1991) (one ounce of cocaine, standing alone, would not have been enough to

support inference of intent to distribute); United States v. White, 969

F.2d 681, 684 (8th Cir. 1992) (7.5 grams of cocaine was insufficient,

standing alone, to support inference of intent to distribute, but as little

as 5 grams could be sufficient, if accompanied by circumstantial evidence);

United States v. Stephens, 23 F.3d 553, 557 (D.C. Cir.) (5.9 grams of crack

was not enough to support inference of intent to distribute), cert. denied,

115 S. Ct. 552 (1994). Of course, we don't look at the amount of drugs

alone; even a small amount, if bolstered by other evidence, can show intent

to distribute. United States v. Johnson, 977 F.2d 457, 458 (8th Cir.

1992). For example, we have held that the drugs' purity level, or the

presence of cash, drug paraphernalia, firearms, and other evidence of drugdealing, are all factors that can support an inference of intent to

distribute. See United States v. Brett, 872 F.2d 1365, 1369-70 (8th Cir.),

cert. denied, 493 U.S. 932 (1989); United States v. Shurn, 849 F.2d 1090,

1093 (8th Cir. 1988). 

The government introduced no evidence, from among the many wiretapped

conversations or from their search of her residence, that Lynn ever dealt

drugs herself. But she was a member of a drug-dealing conspiracy, and the

government's expert witness testified that the drugs found in her room were

packaged for distribution. Her defense at trial was that the drugs were

not hers, but the jury obviously did not believe her. We do not know how

we would have voted if we had been on the jury, but we cannot
-34-

quite say that a reasonable juror could not have found beyond a reasonable

doubt all the elements of possession with intent to distribute. 

G. Sentencing Issues

Dennell Malone, Larry Thomas, and Jermaine Saunders challenge their

sentences. We reject most of their arguments, but remand Saunders's case

for resentencing because he did not organize or lead five "participants"

in the murder-for-hire plot.

1. Crack/Cocaine Powder Disparity

 Under the Sentencing Guidelines, a gram of crack cocaine is

"worth," for sentencing purposes, 100 times as much as a gram of cocaine

powder. U.S.S.G. Guideline Manual § 2D1.1. This is a harsh rule. Malone

argues that the 100-to-1 ratio is "obsolete," and Thomas insists it is

unconstitutional because of its disparate impact on black defendants. We

are bound by precedent to reject these arguments. See United States v.

Jackson, 67 F.3d 1359, 1367-68 (8th Cir. 1995), cert. denied, 116 S. Ct.

1684 (1996). 

2. Evidentiary Hearing

Malone complains that he was sentenced without an evidentiary

hearing. He failed, though, to move for an evidentiary hearing as required

by the District Court's Local Rule 83.10(f) ("The interested party must

file a separate Motion for Evidentiary Hearing contemporaneous with

submission of the [sentencing] position pleading.") True, in his "Position

Paper for Sentencing," Malone disputed his liability for the 15.6 kilograms

of cocaine seized in Utah, and added that "this denial/challenge

precipitates an evidentiary hearing." The government responded to Malone's

position paper by noting that he had not filed the required motion for

evidentiary hearing. Although thus warned, Malone never filed
 After considering the objections in Malone's position paper, 12

the Court "adopt[ed] the findings of the jury." Malone Sentencing

Hearing, at p. 8 (June 12, 1995).

-35-

such a motion, nor did he say anything about the need for an evidentiary

hearing at his sentencing. See United States v. Oehlenschlager, 76 F.3d

227, 230-31 (8th Cir. 1996) ("[W]e will not permit the defendant to sandbag

the district court by contesting valuation without submitting a request for

an evidentiary hearing, as required by local rule.") 

In his position paper, Malone claims he should not have been

sentenced for the 15.6 kilograms of cocaine seized in Utah. He also argues

that he is not liable for all the drugs involved in Counts 10 and 11 (drugdealing using juveniles) or Count 7. Malone is correct that a PSR is "not

a legally sufficient basis for making findings on contested issues of

material fact," because the government must prove, by a preponderance of

the evidence, all facts relied on by the sentencing court. United States

v. Hammer, 3 F.3d 266, 272 (8th Cir. 1993), cert. denied, 510 U.S. 1139

(1994). When a defendant disputes material facts in his PSR, the

sentencing court must either refuse to take those facts into account or

hold an evidentiary hearing. Oehlenschlager, 76 F.3d at 229. This rule

reflects the courts' concern that disputed statements in a PSR might lack

the indicia of reliability and trustworthiness required by the

preponderance-of-the-evidence standard. See Hammer, 3 F.3d at 271-72.

This concern does not apply here. At Malone's sentencing, the

District Court made it clear that it was relying on evidence and testimony

from the trial, and on the jury's verdict. Unlike the PSR, the testimony 12

presented at trial is evidence. See United States v. Greene, 41 F.3d 383,

386 (8th Cir. 1994) ("If the sentencing court chooses to make a finding

with respect to the disputed facts, it must do so on the basis of evidence,

and not the
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presentence report."). The jury found Malone guilty, beyond a reasonable

doubt, of the conduct on which Malone's sentence is based, and the Court

heard testimony at trial concerning the drug quantities involved with that

conduct. Even if we were inclined to overlook Malone's failure to comply

with the local rule, an evidentiary hearing was not required in this case.

See United States v. Simpkins, 953 F.2d 443, 445 (8th Cir.) (district court

permitted to rely on evidence received at trial when making findings, for

sentencing purposes, regarding amount of cocaine involved and defendant's

role in the offense), cert. denied, 504 U.S. 928 (1992). 

3. "Role in the Offense" Enhancement

In accordance with U.S.S.G. § 3D1.2-.3, the District Court grouped

the charges against Malone and Saunders into three groups of "closelyrelated counts," and calculated the adjusted offense levels appropriate for

each group. Group 1 included the murder-for-hire counts; Group 2 included

the drug-trafficking counts; and Group 3 consisted of the cellular-phone

fraud counts. Malone and Saunders object to their four-level "leadership

role" enhancements for Groups 1 and 2. U.S.S.G. § 3B1.1(a) provides for

such an increase "[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants . . .." Our

Court has "broadly defined" the terms "organizer" and "leader." United

States v. Ortiz-Martinez, 1 F.3d 662, 677 (8th Cir.), cert. denied, 510

U.S. 936 (1993). 

 

Regarding Malone's role in the drug-trafficking offense group, the

evidence showed that he "directed or procured the aid of underlings," and

that he was responsible for organizing others for the purpose of carrying

out crimes. See United States v. Rowley, 975 F.2d 1357, 1364 & n.7 (8th

Cir. 1992) (citations omitted). For instance, the jury found (by

convicting Malone on Counts 11 and 12) that Malone organized and

coordinated several juveniles' drug
 At Saunders's sentencing, the Court noted that "[t]he trial 13

testimony in this matter clearly shows the leadership role of the

defendant as it applied to these proceedings." Saunders Sentencing

Hearing, at p. 17 (June 12, 1995). 

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dealing. 

Saunders complains that the District Court gave him a four-level role

enhancement for the drug-dealing offenses but "offered neither at

sentencing nor in the written Statement any additional findings of fact to

support this conclusion." The District Court found that Saunders was

convicted for his role in a drug conspiracy involving at least five others,

and that he played an organizing and leadership role. For example,

13

Saunders sent Chanise Lynn to Los Angeles to procure procaine for the

manufacture of crack cocaine. While we do not pretend that the line

between being an "organizer or leader," on the one hand, and a "manager or

supervisor," on the other, is always clear, see Ortiz-Martinez, 1 F.3d at

677; United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994)

("Reviewing [a role enhancement] is often a murky inquiry."), we think the

§ 3B1.1(a) enhancements for Offense Group 2 were appropriate. 

 

Saunders and Malone also received four-level role-in-the-offense

enhancements for Offense Group 1 (murder-for-hire). At Saunders's

sentencing hearing, the District Court commented, "[i]t appears that

[Saunders] was an organizer or leader of this criminal activity which

involved five or more participants, . . . [including] Malone, Delpit,

Prado, and Lynn." The Court also found that the enhancement was proper in

Malone's case, "based upon the evidence that [was] submitted in this matter

. . .." However, because the District Court counted Prado and Lynn as

"participants" for purposes of Offense Group 1, we think it erred in

imposing four-level enhancements for that offense group. 

It is true that a person need not have been convicted to count
 Malone's Group 1 adjusted offense level was 36; his Group 2 14

adjusted offense level was 43, and his Group 3 level was 8. The

District Court correctly selected the greater of these three levels

(43), and increased it by one level under § 3D1.4 to arrive at a

total offense level of 44. Had Malone received no enhancement for

his role in the Group 1 offenses, his Group 1 adjusted offense

level would have been 32, and his total offense level would have

been 43, not 44. See § 3D1.4(b). An offense level of 43 calls for

a mandatory life sentence.

 Saunders's adjusted offense level for Group 1 (with the four- 15

level role enhancement) was 36; his adjusted offense level for

Group 2 was 42; and for Group 3, 10. The highest adjusted offense

level was 42, and the District Court increased it by one under

§ 3D1.4 for a total offense level of 43. Had Saunders not received

any role enhancement for Group 1, his total offense level would

have been 42, § 3D1.4(c), which would have permitted the District

Court to impose a 30-year sentence. 

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as a "participant" under § 3B1.1; a "participant" is "a person who is

criminally responsible for the commission of the offense . . .." Id. at

cmt. 1; see United States v. Freeman, 30 F.3d 1040, 1042 (8th Cir. 1994)

(persons who were not indicted or tried, but who were nonetheless

criminally responsible for defendant's crime, were "participants" under

§ 3B1.1). As we discussed above, though, Prado and Lynn were not

criminally responsible for Saunders's and Malone's § 1958(a) violations;

their federal crimes were complete before Prado and Lynn were recruited to

assist Delpit. See United States v. Lewis, 68 F.3d 987, 989-90 (6th Cir.

1995) (because persons lacked knowledge and intent required by underlying

offense, they could not be "participants" under § 3B1.1); United States v.

Melendez, 41 F.3d 797, 800 (2d Cir. 1994) (persons who received proceeds

from theft not "participants" under § 3B1.1).

 

In Malone's case, though, even if he had received no enhancement at

all for his role in the Group 1 offenses, he would still be facing a

mandatory life sentence. It is not necessary, therefore, to remand

14

Malone's case for resentencing. Saunders's case is different. Had he

received no role enhancement for the murder-related group of offenses, he

would have been eligible for a 30-year sentence. This is not to say

15

that, at resentencing,
 Saunders Sentencing Hearing, at p. 18 (June 12, 1995). 16

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Saunders won't again receive a four-level enhancement. Section 3B1.1(a)

permits a four-level enhancement when a defendant is the leader or

organizer of a criminal activity that is "otherwise extensive," and it may

be that such an enhancement is appropriate in Saunders's case. That is a

question for the District Court to decide. 

4. Saunders's Relevant Conduct

The District Court held Saunders responsible for 532.3 grams of crack

involved in Counts 10 and 11 (the Counts involving Malone's use of

juveniles in drug-dealing). The Court found that these drugs were part of

the Saunders/Malone operation -- part of the overall conspiracy -- and were

therefore attributable to Saunders. Saunders contends that the evidence

does not support this finding. He admits, though, that he may be sentenced

for drug quantities which are part of the conspiracy, and are reasonably

foreseeable. See U.S.S.G. § 1B1.3(a)(1)(B) (A defendant may be sentenced

for "all reasonably foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity, that occurred during the

commission of the offense of conviction . . .."). It is not necessary that

Saunders have participated in distributing the drugs himself, or even that

he actually knew about the drugs, only that the drug quantities were

reasonably foreseeable to him. See Darden, 70 F.3d at 1546. We think the

District Court correctly found that the 532.3 grams of crack were part of

the operation's "overall activity" and were "part of the conspiracy count

[on] which [Saunders] was convicted."16
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III.

We affirm the convictions and sentences of Jai Jones, Larry Thomas,

Calvin Delpit, and Dennell Malone; reverse Jermaine Saunders's four-level

role-in-the-offense enhancement on the murder-for-hire charge; affirm in

part and reverse in part Chanise Lynn's convictions; and reverse Zackarrie

Prado's interstate murder-for-hire conviction. We remand this case to the

District Court for further proceedings consistent with this opinion.

Saunders and Lynn should be re-sentenced, and the indictment against Prado

should be dismissed.

A true copy.

Attest:

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