________________________________________________ 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. * * *

### -2- _____________ * * 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. * * *

### *Th e Hon. Bruce M. Van Sickle, United States District Judg e

for the District of North Dakota, sitting by designation. -3- _____________ * * 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 VA N SICKLE, District Judge.

*

___________

### -4-

RICHARD S. ARNOLD, Chief Judge.

Ajury convicted the seven defendants of various crimes, includin g interstate murder-for-hire, 18 U.S.C. § 1958(a), arising out of a Twi n Cities -based drug conspiracy and gang rivalry. They received priso n sentences ranging fro m 97 months to life. The defendants challenge their tri al, convictions, and sentences. We reject most of these challenges

. We agree, however, with Chanise Lynn and Zackarrie Prado that thei r inters tate murder-for-hire convictions must be reversed. They may wel l have ta ken part in a murder plot, but the government did not prove the y violated federal law. Finally, we remand Saunde rs'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.

Th e jury found that the defendants all participated in the drug

dealing and strong-arm tactics of a Twin Cities gang called the Shotgu n Crips. Dennell Malone and Jermaine Saunders were the ringleaders of the operat ion. They imported cocaine from California, for re-sale i n Minnesota, through their source, Kenneth Washington (who apparently remain s
a fugitive). The operation included couriers who smuggled procaine ( a cutting agent used to make crack) from Californi a to Minnesota; underlings who helped convert cocaine powder into crack; and middle-men who bough t crack from the operation and sold it to others. And in August 1994, the operation employed the services of Calvin "Monst er" Delpit, a Los Angelesbased hitman, to intimidate a rival gang and com petitor in the Twin Cities drug market.

We describe the evidence against the individual defendants in mor e det ail below. For now, we will simply summarize the case against th e Malone/Saunders operation. The case grew out of an investigation into the Los Angeles Shotgun Crips' Minnesota

### All three y oung men pleaded guilty to drug-related offenses. 1 

### See United States v. D.A.M. , 69 F.3d 542 (8th Cir. 1995). -5- outrea ch efforts. Beginning in May 1994, government agents bega n wireta pping telephones used by Larry Thomas, and they intercepted code d conversations about drug-dealing. These conversations led the agents to
one of Thomas's customers, Tim Nelson, who agreed to cooperate with th e investigation.
Thomas's drug source, the wiretaps r evealed, was the Malone/Saunders operation, and Thomas owed the operation a large sum of money. On June 7, the polic e observed as Thomas passed a paper bag to Malone and Saunder s during a pre-arranged money drop. That night, Malone and Saunders tol d Thoma s he hadn't paid all the money he owed. Malone also tried to sel l Thomas a cellular phone, which, he suggested, would help them avoi d wiretaps. Thomas continued to negotiate with Washington and Malone t o purchase more drugs, but because Thomas was so f ar 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 bein g investigated.

Malone and Saunders, however, did not quit their drug-dealin g activities. That same June, Malone was using three juveniles, including hi s younger brothers, to sell drugs for him. And in August, th e 1 government intercepted phone calls between Saunders and Washingto n 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 othe r significant drug shipment had made it through to Minnesota.
That same August, the government learned that Malone and Saunde rs had hired Calvin Delpit, an L.A. hitman, to come to Minnesota and kill members -- no one in particular, apparently --

### -6-

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 pros pective victim (a new father) unaware. Malone and Saunders the n
arran ged for guns and a driver for Delpit so he could "put some work o n somebody." Chanise Lynn drove Delpit around tha t night, and the next, but they couldn't find anyone to kill. Delpit called Saunders to tell him tha t he and Lynn had found some potential victims, bu t 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 lea d
car which would flash its brake lights to indicate vulnerable Vice Lords nearby. The police overheard Saunders's plan and responded with round-the

clock surveillance on Delpit.
The next day, August 28, Prado calle d 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 the y could amb ush the Vice Lords that afternoon at a concert in downtow n Minneapolis, and Saunders put Prado in touch wit h Delpit. A little later, Prado picked up Delpit, and then Malone. The gr oup then split up into two cars, with Prado and Malone in the lead and Delpit following by himself. The police, concernedthat the drive-by plan was about to go off, stopped the cars. Delpit tried to escape. He pulled his gun, pointed it at a n 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 phon e conversations confirm ing 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 day s later, Saunders sent Chanise Lynn to California to pick up

### Malone, Saunders, and Delpit were chargedin 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 i n posses sion of a firearm, 18 U.S.C. § 922(g)(1); Saunders wa s 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 connec tion with drug trafficking, 18 U.S.C. § 924(c)(1), and i n Cou nt 15 with obtaining cellular telephone services by fraud, 1 8 U. S.C. § 1029(a)(1); Malone was charged in Counts 9 and 8 wit h aiding and abetting possession with intent to distribute an d 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
-7- some procaine. Saund ers 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 ba gs. Prado met them at the airport, dropped Lynn off at her house, and then he and Jones delivered th e procaine to Malone an d Saunders. While the police were getting a warrant to search the house w here Malone and Saunders had divided up the procaine and w ere getting ready to "cook" the crack, people started leaving th e hou se. The police stopped Jones and Prado, and found seven pounds o f 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 $5,00 0 in cash in the car. Finally, Saunders and two others left. Th e police tried to stop them and, during a high-speed chase, Saunders threw two guns and a backpa ck out of the car. The police eventually caught the car, arrested Saunders, and found the guns (both loaded). They also found th ree more pounds of procaine and a scale in the car. The next day , someone turned the backpack over to the police. It contained another clon e cellula r phone, 1.5 kilograms of powder cocaine, wrapped in a specia l fashion, just like the cocaine shipment that hadbeen intercepted in Utah.

The go vernment brought a fifteen-count indictment against th e def endants. 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 th e 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 defendant s with var ious drugs-, fraud-, and weapons-related crimes. All th e 2

### in Count 13 with obtaining cellular telephone services by fr aud, 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 wit h 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 j ury acquitted Prado on the drug-c onspiracycharge (Count 7). Malone and Saunders received lif e sentences; Delpit, 19 years; Thomas, 15 years and three months; Jones, nin e years and four months; Lynn, nine years; and Prado, eight years and on e 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 thin k this opin ion will be easier to follow if organized by shared claims an d arguments instead of by the individual defendants bringing them.

A. Severance

Six of the seven defendants -- all but Delpit -- insist that th e Distr ict Court should not have joined their cases with the others' an d should have granted their motions to sever. The District Court found that because "the conspiracies alleged are interconne cted and encompass each of the individual substantive counts, joinder of th e defendants and counts is proper." We will reverse the District Court's denial of the severanc e

3 motions only

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

### -10- if it a bused its discretion, resulting in definite prejudice. Unite d States v. Darden , 70 F.3d 1507, 1526 (8th Cir. 1 995), cert. denied , 116 S. Ct. 1449 (1996). In this case, the Court did not abuse its discretion, no r have the defendants identified specific prejudice.

Under Fed. R. Crim. P. 8(a), offenses may be joined if they are o f the same or similar character, or are based on the same act or transaction , or on different acts or transactions which are p art of a "common scheme or plan." Defendants may be joined if "they are al leged to have participated in the same act or transaction or in the same series of acts o r transacti ons constituting [the] offense . . .." Fed. R. Crim. P. 8(b)

. See Darden , 70 F.3d at 1526-27 (joined defendants and counts were factuall y int errelated). Importantly, not every defendant joined must hav e participated in every offense charged. United States v. Jones , 880 F.2d 55, 62-63 (8th Cir. 1989).

We agr ee with the District Court that joinder was proper in thi s case. All the defendants but Delpit were charged with the same, underlyin g drug co nspiracy (Count 7), and the government alleged that Malone an d Sa unders hired Delpit to do a contract killing to increase thei r operation's prestige and profits. It doesn't ma tter 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 th e District Court observed, when violence is part of the conspiracy's modus operandi , "charges stemmin g fromthat 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 se parate trials on different counts, or sever certain defendants'

### -11-

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 joinde r. Id. at 1528 ("[A] joint trial `gives the jury the bes t 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 b e 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").

Saunder s complains because Delpit told the jury that he was a dru g dea ler -- not a killer -- and that he came to the Twin Cities to broke r 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. "Anta gonistic" defenses require
severance only when "`there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. '" Unite d Sta tes v. De Luna , 763 F.2d 897, 921 (8th Cir.) (citation omitted ) (emphasis added), cer t. 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, th e gang affiliations and disruptive courtroom behavior of some defendants, th e 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 require d merely because evidence which is admissible only against some defendants

### -12-

may be damaging to ot hers, United States v. Blum , 65 F.3d 1436, 1444 (8th Cir. 1995), cert. den ied , 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 codef endant's counsel was not so prejudicial as to require severance); o r because the joint trial requires enhanced courtroom security. See Blum , 65 F.3d at 1 444. Nor is it enough for a defendant to claim, as Larr y 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 co

defendant 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 instruction s like those given by the District Court in this c ase. See Zafiro , 506 U.S. at 540-41. The Distr ict Court repeatedly instructed the jury -- using an instruction drafted by the defense -- that the murder-for-hire evidence wa s admissible only against the defendants charged w ith interstate murder-forhire. The jury acquitted Prado and one other defendant on the drug

conspiracy charge, which shows they were able to separate out the drug

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

A defenda nt must show actual prejudice before we will reverse a denial of a motion fo r severance. None of the defendants has made such a showing, and the District Court did not abuse its discretion. We think th e 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 b y association. Instead, we

### -13-

presume, as we must, that juries can and do follow instruction s conscientiously, evaluate evidence carefully, and judge defendant s individually.
B. Sergeant Murphy's Interpretation of the Coded Conversations

The government's investigation and prosecution depended heavily o n 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 th e conversations were in code ( e.g. , "let's go play ball" for "let's do a cocaine deal"). Thir d, the speakers often stuck the syllable "iz" in the middle of words, resu lting in a kind of "pig latin" ( e.g. , "kiz-ar" means "car," and "shiz-ootin" means "shooting").

Se rgeant James Murphy prepared transcripts of the wiretap evidenc e with translations of the "pig latin" words in brackets and, at trial, he identified most of the taped conversations. He also gave the jury hi s opinion a bout the meaning of certain code words and slang terms. Lynn , Delpit , Jones, and Saunders argue that Sergeant Murphy's testimony wen t beyond interpretation to speculative, prejudicial, testimony. As Jone s puts i t, Sergeant Murphy's explanations and translations were only hi s opinions that the defendants were guilty. The d efendants also insist that Sergeant Murphy's testimony was unnecessary, bec ause the jury could easily have interpreted the tapes on its own, and they contend that the District Court committed rever sible error by allowing the testimony. We disagree.

Saunders cites the following exchange as an example of Sergean t Murphy's allegedly over-creative interpretation:

[Thomas's Voice]: "You at least have a shade over some

### -14- motherf*****, man!"
Sergeant Murphy interpreted this statement:

I don 't believe he liked . . . having to meet ou t in the open like that.
Delpit provides another example:

[Saunders's Voice] Th e ni**** got my, um, I can't really eve n li ke let ah, him handle his business cuz I can't get to no straps. He got like two o f 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 c an't let Monster go out and take care of th e business that he was up there for[,] to shoot some Vice Lords.

Athird example: Saunders said, on tape, "He was fittin to liz-iz-iz-ay
some down ." Sergeant Murphy testified that to "lay some down" meant t o kill someone. And when asked whom Saunders was talking about, Sergean t Murphy said, "The Vice Lords."

It is well established that experts may help the jury with th e meaning of jargon and codewords. See, e.g. , Uni ted 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' crypti c slang than antitrust theory or asbestosis. See United States v. Scavo , 59 3 F.2d 837, 844 (8th Cir. 1979) (gambling conversations which were "virtuall y inco mprehensible to the layman, are fraught with meaning to a perso n familia r with gambling enterprises"). We have no doubt that Sergean t Murphy is an "expert" or that he was able to ass ist the District Court and

### It appears the defendants don't really believe this either. 5 

### Prado's brief notes that Sergeant Murphy had to interpre t "Saundersease," a "combination of hybrid pig latin and stree t slang which is difficult to understand until one is accustomed to it. " Jones concedes as much in his brief as well. -15- explain the defendants' slang to the jury. The argument that Murphy was unqualified because h e 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 e xperience, 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 le nds itself to ivied halls. In a rough-and-ready field such as this, experience is likely the bes t teacher.") And, afte r reviewing many of the wiretapped conversations, we cannot agree with the defendants that the tapes were so clear that Sergean t Murphy's testimony was unnecessary. 5
That said, we agree that Sergeant Mu rphy appears on occasion to have gone beyond merely translating straightforward terms. But even if th e Sergeant's testimony did, at times, "go [ ] beyond the plain meaning of th e record ed conversation[s]," we must still decide whether there is a "significant possibility" that this testimony ha d 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 recorde d conversation, but jury could have inferred the defendant's guilt from othe r evidence), cert. deni ed , 114 S. Ct. 1410 (1994). We are sure it did not. Sergeant Murphy's occasional elaborations referr ed 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
re corded conversations, also in evidence, about Delpit's having bee n 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

### -16-

similar in kind to other evidence).

The Distr ict Court instructed the jury that it was not bound by the opinion of any expert. See United States v. Dan iels , 723 F.2d 31, 33 (8th Cir. 1983) (any possibility of undue prejudice from expert's interpretatio n of gam bling 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 ar e confi dent that Sergeant Murphy's occasionally expansive translations -

- which w ere, again, grounded in other evidence -- did not have a "substantial impact" on the jury. See Sanchez-Sotelo , supra ; United State s
v. C arrazana , 921 F.2d 1557, 1568 (11th Cir.) (any error in expert' s interpretation of def endants' 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 wa s prejudicial and required a new trial).

C. Other Evidence Issues

Several defendants raise other evidence-related claims. We wi ll not overturn a trial court's decision concerning the admissibility of evidence absent abuse of discretion. See, e.g. , United S tates v. Roulette , 75 F.3d 418, 423 (8th Cir. 1996).

1. Delpit's Prior Felony Convictions

Calvin De lpit was charged, in Count 4 of the indictment, with being
a fe lon in possession of a firearm. 18 U.S.C. § 922(g)(1). The prio r felo nies alleged were credit-card fraud and rape. Delpit offered t o stipulate to the existence and number of prior felonies, but the governmen t decl ined. Delpit therefore decided to plead guilty to the felon-in

possession count. He now claims "[h]e had

### Delpit's reliance on United States v. Poo re , 594 F.2d 39 (4th 6 

### Cir. 1979), is misplaced. In Poore , the government accepted th e defendant's stipulation. Id. at 40-41. The court held that , because the government accepted the stipulation, the distric t court erred by not redacting references to the stipulated offense from the indictment. Poore has nothing to do with whether th e gov ernment must accept a defendant's offer to stipulate. Se e Poore , 594 F.2d at 41 (noting that government "is not required to accept defendant's proffered general stipulation of conviction of felon y. . . in lieu of offering proof thereon") (citing Unite d States v. Smith , 520 F.2d 544, 548 (8th Cir. 1975), cert. denied , -17- no other choice" and argues that the District Court abused its discretion by n ot ordering the government to stipulate to his prior offenses o r granting his motions to sever or to strike.
As Delpit candidly admits, "the government is not bound by . . . an off er to stipulate and . . . it is not error to allow the government t o introduce more than one conviction in a case where only a single convictio n 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 convictio n pose d to his chances for an impartial verdict on the murder-for-hir e charges. In Delpit's view, the Court "forced" D elpit 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 instea d of going to trial. No doubt, this was a difficu lt decision, but it was no different from the hard choices made by thousand s 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 discre tion, see United States v. Bruton , 6 47 F.2d 818, 825 (8th Cir.) ("[A] case might be imagined wher e proof of a plurality of convictions would be prejudicial . . .."), cert. denied , 454 U.S. 868 (1981); Romano v. Oklahoma , 114 S. Ct. 2004, 201 3 (1994) (O'Connor, J., concurring) ("It may well have been better practice for the State to agre e to accept petitioner's stipulation offer . . .."), but this is not such a case. 6

### 429 U.S. 925 (1976)). -18- 2. Delpit's Nickname
Delpit's unfortunate nickname is "Monster." Before trial, he moved to strike this nickname from the indictment. The District Court denie d this motion, correctly noting that "the use of this name is necessary to fully identify . . . Delpit." Delpit now claims he was denied a fair tria l because the government's "continued and repeatedreference to his nickname was tantamount to tes timony about his character . . .." We disagree. In
some cases, the use of a defendant's irrelevant nickname to suggest his ba d character or unsavory proclivities may be prejudicial, see, e.g. , United States v. Williams , 739 F.2d 297, 299-300 (7th C ir. 1984), but this is not
suc h a case. There was no way for the jury to avoid hearing Delpit' s nickname, because he was referred to in the wire taps almost exclusively as "Monster."

3. Mention of Murdered Police Officers

In one t aped 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 com plained 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 c lowns" (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 thei r badge num bers. When this tape was played at trial, Sergeant Murph y explained that the officers had small black ribbons on their badge s honoring two officers who had been killed recently in the line of duty

. Prado

### -19-

and Jones now argue that the District Court abused its discretion b y allowing S ergeant Murphy to explain the ribbons. They claim that th e mention of the two dead police officers was far more prejudicial tha n probative. Jones say s that he was particularly prejudiced because he had nothing to do with the murder-for-hire plot. We disagree. Even if th e reference to the murd ered officers as "clowns" could have reflected badly
on Malone and Saunders, we believe this isolated incident did not prejudic e Prado or Jones.

4. Co-conspirators' Statements

Dennell M alone states that the District Court abused its discretion in admi tting statements by his co-conspirators. This claim is poorl y developed; it appears Malone is simply restating his argument that hi s trial should have bee n 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 an d 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 jur y 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 Jon es contends he was denied a fair trial because the Distric t Court admitted various guns into evidence, guns which had nothing to d o 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 a nd admissible against only
som e defendants. The proper response is to instruct the jury, as th e District Court did in this case, that the eviden ce -- here, the guns -- is admissible against some defendants but not others. In any event, Jones ha s not proved, or even a lleged with specificity, any prejudice, so there was no abuse of discretion.

D. Use of Transcript in Jury Deliberations

Jermain e Saunders argues that the District Court abused it s disc retion by allowing the jury to use transcripts of the wiretappe d conversations during trial and deliberations. First, Saunders complains that the government did not give the defendants enough time to evaluate th e transcripts to insure their accuracy. Next, he says that the transcripts were not "objectively verifiable" translations o f the recordings; instead, theyincluded the government's "prefabricated subjective interpretation s of conversations that were recorded in English." Saunders also insist s that there was no need for the transcripts, because the tapes themselves
were clear and audible, and the speakers were identified in Sergean t Murphy's testimony. See United States v. McMill an , 508 F.2d 101, 105 (8th Cir. 1974) ("[T]he need for . . . transcripts is generally caused by two circumstances: inaud ibility 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 w ell settled that the jury may use transcripts of wiretappe d conversations during trial and deliberations. S ee 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 not e that the defense lawyers prepared transcripts of their own, which were als o given to the jury. For all we know, the jury never even looked at th e government's transcri pts, only at the defendants'. Most importantly, the District Court instructed the jury, diligently and repeatedly, as it was requ ired to do, that the tapes themselves, not the transcripts, wer e evi dence. 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 reason able-doubt instruction, and Jai Jones and Malone contend that th e Distri ct Court should have given a multiple-conspiracy instruction. W e reject both these claims.

1. Reasonable-Doubt Instruction
The District Court instructed the jury as follows:

Reasonable doubt is a doubt based on reason an d common sense and not the mere possibility o f innocence. A reasonable do ubt is the kind of doubt that would make a reasonable person hesitate t o act. Proof beyond a reasonable d oubt, therefore, must be proof of such a convincing character that a reaso nable person would not hesitate to rely an d act upon it in the most imp ortant of his or her own affairs. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

Lyn n and Malone object to the "mere possibility of innocence" language

. Lynn a rgues that the reasonable-doubt instruction "misdefined th e government's burden" by suggesting a "more likel y 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-proces s requirement, but, lik e most constitutional standards, it does not come in a ready-made package. See Victor v. Nebraska , 1 14 S.Ct. 1239, 1243 (1994) ("[T]he Constitution does not require that any p articular form of words be used in advising the jury of the government's burden of proof.") We have repeatedly rejected challenges to the "mere poss ibility of doubt" language used in this case. See United States v. Simms , 18 F.3d 588, 593 (8th Cir. 199 4); 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 1248-4 9 (rejecting challenge to "not a mere possible doubt" language). Th e instruction used in t his case strikes us as a helpful and accurate way of communicating the cor rect 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 conspiracie s involved in this case, and that the District Court erred in refusing t o give a multiple-conspiracy instruction. There may have been common actors , he argues, but there were several separate criminal agreements. Malon e urges a similar argument. A trial court should give a multiple-conspiracy instruction when, andonly 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 dif ferent tasks, bu t Jones and Malone point to no evidence that undercuts th e gover nment's theory that these players and tasks were part of a singl e conspiracy, the one charged in Count 7. See

### -23-

Unite d States v. Cabbell , 35 F.3d 1255, 1262 (8th Cir. 1994) (althoug h "`various defendants entered the conspiracy at different times an d performed different f unctions, the conspiracy had one criminal objective: to sell large quantities . . . [of] drugs'"); United States v. Lucht , 18 F.3d 54 1, 553 (8th Cir.) (separate transactions do not prove separat e conspiracies), cert. denied , 115 S. Ct. 363 (199 4). 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 onlySaunders's, Lynn's, and Prado's challenges to their murder-for-hire convic tions (Counts 1 and 2); we discuss the other sufficiency-of-the

evidence arguments in Part G, infra . As the def endants are well aware, it is hard to win on an insufficiency claim: they must show that n o rea sonable jury could have found them guilty beyond a reasonable doubt

. We review and interpret the evidence in the light most favorable to th e 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 defen dants face long prison terms. Although we will not recite all the evidence introduced at trial, we have reviewed that evidenc e closely and given careful consideration to the d efendants' arguments. For the reasons outlined below, we affirm the convictions of Jai Jones , Jermaine Saunders, and Larry Thomas. We also affirm Chanise Lynn' s pos session-with-intent-to-distribute conviction. We reverse Lynn's an d Zackar rie Prado's murder-for-hire convictions. Lynn and Prado may wel l 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-

limite d powers, and under this charter the "States possess primar y 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, an d § 1958(a), which outlaws interstate murder-for-hire, is unquestionably a valid exercise of this power. Section 1958(a) provides:

Whoever travels in or cause s 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 receip t of, or as consideration for a promise o r 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 t o prove that they (1) travelled or caused another to travel in interstat e commerce, (2) with the intent that a murder be committed, (3) for hire

. United States v. McGuire , 45 F.3d 1177, 1186 (8t h 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 pro hibits and in what it does not reach. It does not prohibit murder or attempted murder. Instead, it outlaws using interstate-co mmerce facilities with the intent that murder-for-hire be committed. Once the interstate-commerc e facility is used with the required intent the crime is complete. One who travels or causes another to travel in interstate commerce with th e necessary

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

### which provides in part: (a) Whoever travels in inters tate 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) co mmit any crime of violence to further any unlawfu l activity; or (3) otherwise promote, manage, establish, carry on, o r 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 b e punished]. (emphasis added). "[Whoever violates the statute] shall be fined under thi s 8 

### title or imprisoned for not more than ten years, or both; and i f person al injury results, shall be fined under this title an d imprison ed for not more than twenty years, or both; and if deat h 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- murde rous intent need not do anything else to violate the statute. Se e 7 McGuire , 45 F.3d at 1 186-87. It is clear, moreover, that a defendant can violate § 1958(a) wit hout actually hurting or killing anyone, because the statute provides for enhancedpunishment when de ath or injury results from the defe ndant's violation of the statute. If there were any doubt, i t 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 th e 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 Twi n 9 

### Cities by August 24, and that Chanise Lynn was recruited a s Delpit's driver on August 26 and 27. -26- 1984 U.S.C. Cong. & Admin. News 3182, 3485.

1. Jermaine Saunders

To co nvict Saunders of violating § 1958(a), the government had t o prove that (1) Saunders caused Delpit to travel in interstate commerce, (2 ) he or Delpit intended that a murder be committedin 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, an d Prado were plotting the drive-by shooting, and that the government's theor y of his role in the pl ot is based "solely and exclusively on Sgt. Murphy's interpretation of sev eral telephone conversations." In our view, though, Sgt. Murphy's testimony provided ample evidence against Saunders. Saunder s recruited Delpit to c ome to Minnesota and kill Vice Lords; he was the one to who m Delpit reported after his failed hit; he told Delpit to kee p trying, and agreed to send Delpit's wife a partial payment of $1,500; and he organized the August 28 two-car assassinationplan. It does not matter whether he w as "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 conspire d to violate § 1958(a).

2. Chanise Lynn

Ms. Lynn helped Delpit, at Saunders's request, seek out Vice Lord s to kill. By this point, though, the § 1958(a) violation was complete. 9 Malone and Saunders had already caused Delpit to travel, and Delpit ha d alread y travelled, with the requisite intent that a murder-for-hire b e committed. The government insists that

### We made clear the distinctio n between accessories after-the- 10 

### fact and aiders and abettors in United States v. Brown , 33 F.3 d 1002 (8th Cir. 1994): "`The very definition of the crim e [accessory after the fact] als o requires that the felony not be in progress when the assistance i s 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 UnitedStates v. Barlow , 470 F.2d 1245, 1252-53 (D.C. Cir. 1972)); see Unite d 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 murd er-for-hire and the related conspiracy continued for another week and Lynn played an integral role in it," but that does no t matter. Section 1958(a) is not a murder statute; it is a carefully-drafte d 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 " def inition of aiding and abetting requires "not only that the defendan t have aided his principal to commit a crime but also that he have wanted th e principa l to succeed in committing it. Obviously this rules out . .

. cases in which the de fendant was a mere accomplice after the fact . . .." United States v. Ortega , 44 F.3d 505, 507 (7th Cir. 1995) (citing United State s 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 i n perfo rming.") We regularly instruct juries that a person may be foun d guilty of aiding and abetting if, before or at the time the crime wa s
com mitted , he knew the offense was being committed or was going to b e 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 Unite d 11 

### States v. Baker , 82 F.3d 273, 275-76 (8th Cir. 1996). In tha t case, Baker, a police officer, extorted a payment from an arrested motorist, who withdrew money from an automated teller machin e (ATM) to pay the bribe. Baker was convicted under the Travel Act, 1 8 U.S.C. § 1952(a), and argued on appeal that his act of extortio n lacked the required effect on interstate commerce. This Cour t disagreed, noting that the ATM was a "facility in interstate o r foreign commerce," which Congress was entitled to regulate and to pro tect, even from wholly intrastate activity. In Baker , th e defend ant argued that the United States could not prosecute hi m beca use there was no jurisdictional "hook," no "nexus" wit h interstate commerce. In this case, though, the question is simply whet her or not the government introduced sufficient evidence t o 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 Unite d 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 , 11 5 S. Ct. 341 (1994). Lynn's conviction on Count 1 must b e reversed because the government presented no evi dence suggesting that Lynn aided and abetted Malone and Saunders in recruiting Delpit or that sh e aided and abetted Delpit's interstate travel.
It follows that Lynn's conviction for conspiracy to violate § 1 958(a) must also be reversed. To prove a conspiracy, the government needed t o prove an agreement, between at least two people, the objective of which wa s to violate federal la w. See United States v. Jenkins , 78 F.3d 1283, 1287 (8th Cir. 1996). Lynn joined the plot to kill V ice Lords after the object of th e conspiracy charged in Count 2 was accomplished. The governmen t pre sented no evidence suggesting that Lynn conspired to cause Delpit t o travel, or that she c onspired with Delpit to travel, with the intent that a murder-for-hire be committed. In the end, she may have been party to an attem pted 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 evidenc e shows only that he was concerned about Vice Lords harassing his mother, no t that he had anything to do with an assassination scheme. We think it quit e clear that Prado, Mal one, and Delpit planned to kill some Vice Lords, and that Prado knew exactly what was going on. We r everse 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 gove rnment failed to prove that Prado violated § 1958(a), or that h e conspi red to do so, because there was no evidence that Prado had an y involvement in the mu rder plot before the federal crime with which he was charged was complete.

F. Sufficiency of the Evidence: Other Convictions

LarryThomas, Jai Jones, Chanise Lynn, and Jermaine Saunders al l argue that the evidence against them was insufficient to support thei r drug-related convictions. We affirm the convictions.

1. Jermaine Saunders
Saunders contends that his conviction for using or carrying a f irearm during a crime of violence, 18 U.S.C. § 924(c)(1), must be reverse d because, under Bailey v. United States , 116 S. Ct. 501 (1995), he is not liable for Delpit's gun use. We don't think Bai leyhelps 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 therefor e "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." Un ited States v. Simpson , 979 F.2d 1282, 1284-86 (8th Cir. 1992 ) (emphas is 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 C ount 8 (attempted possession with intent to distribute th e 15. 6 kilograms of cocaine seized in New Mexico), Saunders again insist s that Sgt. Murphy's te stimony and the wiretap evidence are insufficient to suppor t his conviction. Saunders claims the government presented n o evidence connecting the New Mexico seizure to his alleged drug operation in Minnes ota. We disagree. To convict Saunders on this Count, th e government had to prove that he "intended to possess and distribute th e cocaine, and that he took a substantial step toward that goal . . .. " United S tates v. Searing , 984 F.2d 960, 964 (8th Cir. 1993). The jur y heard conversations b etween Saunders and Washington, and between Saunders and Malone, discussing the seizure of the cocaine shipment they ha d arranged and were expecting. Saunders told several people that he had bee n hit wi th a loss of 15 "things" (kilograms of cocaine). The evidenc e supported the jury's decision.

2. Larry Thomas

Thomas contends that the evidence against him was insufficient t o 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 Larr y Thomas was "one of the nicest persons that you w ould want to know," but he also testified that he bought about 1.5 kilograms of crack from Thomas ove r a si x-month period. Thomas thinks the jury should not have believe d 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 b e reve rsed because the only evidence against him was (1) that a polic e officer saw him and M alone exchange a bag (an exchange Thomas insists was perfec tlyinnocuous) and (2) coded phone conversations, none of which , Thomas contends, conn ect him to a drug conspiracy. Thomas says the calls
were about women, sports, and a truck sale, not drugs. In the end, though , Thomas i s arguing that the jury was unreasonable for believing th e government's "spin" on the evidence instead of Thomas's.
As we said above, we think the evide nce against Thomas shows that he
was buying drugs from the Saunders/Malone operation and selling drugs to others. The questionremains, 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 co nspiracy to distribute. See United States v. Eneff , 79 F.3d 104, 105 (8th Cir. 1996). The jury could reasonably have conclude d that T homas had an ongoing arrangement with Washington, Saunders, an d Malone that they would front him with drugs for resale. The jury hear d tapes in which Thomas and Saunders confirmed that the bag exchang e described above was a drug-related money drop. It heard Thomas ask fo r more drugs from Malone and Saunders, and they heard Thomas rebuffed becaus e he was beh ind on his debt. And the jury heard tapes suggesting tha t Washington, through Malone and Saunders, was Thomas's ultimate drug source

. Thomas ar gues that the bag exchange was not what the government said i t was, but the jury found otherwise. Thomas says that the various phon e calls don 't mean what Sergeant Murphy said they meant, but the jur y 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 suppor t his conviction. He says his conviction was based solely upon his transportation of procaine, " a lawful substance," an d on approximately five telephone conversations with Saunders about obtaining the procaine. In effect, Jones admits h e transported the procaine, but insists that he thought what he was doing wa s legal. But the jury heard evidence that Jones talked in code about th e procaine; that he too k precautions, on instructions from Malone, to avoid being caught with it; and that he delivered it t o Malone and Saunders, who
were wai ting for the procaine so they could make crack. The jury als o hear d evidence of Jones's experience with drug-dealing, and apparentl y thought he knew exact ly what the procaine was for. The evidence supports the jury's verdict.

4. Chanise Lynn

Lynn als o argues that the evidence does not support her conspirac y conviction. We disag ree. The evidence suggested that Lynn was a regular courier for the Saunders/Malone operation; that she went to California, on Saunde rs's orders, to get procaine; and that she occasionally kep t contraband and money for the conspiracy at her residence. A reasonabl e jury could have found that Lynn knew of, and intentionally joined, the dru g conspiracy charged in Count 7.

Chanise Lynn also contends the evidence does not support he r conviction for possession with intent to distrib ute crack. The government found and seized 3.7 grams of crack -- 20 indivi dually 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 intende d to distribute the crack. It is a close call, but we disagree.

Possession of such a small amount of drugs, standing alone, is a n insufficient basis from which to infer intent to distribute. United State s v. Buchanan , 985 F.2d 1372, 1377 (8th Cir. 1993) , cert. denied , 114 S. Ct. 2727 (1994). See Uni ted States v. Gordon , 923 F.2d 123, 125-26 (8th Cir. 1991) (one ounce of cocaine, standing alone, wou ld not have been enough to sup port inference of intent to distribute); United States v. White , 96 9 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 littl e
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 crac k
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 drug s alone; even a small amount, if bolstered by other evidence, can show inten t 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 th e presence of cash, drug paraphernalia, firearms, and other evidence of drug

dealing, are all factors that can support an inference of intent t o 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 wire tapped conversations or from their search of her residence, that Lynn ever dealt drugs herself. But she was a member of a drug-d ealing conspiracy, and the government's expert witness testified that the drugs found in her room wer e packaged for distribution. Her defense at trial was that the drugs were not hers, but the jur y 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 M alone, 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 th e Sentencing Guidelines, a gram of crack cocaine i s "worth," for sentencing purposes, 100 times as much as a gram of cocaine powder. U.S.S.G. Guideline Manual § 2D1.1. Thi s is a harsh rule. Malone argue s that the 100-to-1 ratio is "obsolete," and Thomas insists it i s unconstitutional beca use 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 evidentiar y hearing. He failed, though, to move for an evidentiary hearing as require d by the District Court's Local Rule 83.10(f) ("The interested party mus t file a separate Motion for Evidentiary Hearing contemporaneous wit h submission of the [sentencing] position pleading.") True, in his "Positio n Paper for Sentencing," Malone disputed his liability for the 15.6 kilogram s of coc aine seized in Utah, and added that "this denial/challeng e precipitates an evidentiary hearing." The government responded to Malone' s position paper by noting that he had not filed the required motion fo r evidentiary hearing. Although thus warned, Malone never filed

### After considering the object ions in Malone's position paper, 12 

### the Court "adopt[ed] the findi ngs 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 sandba g the district court by contesting valuation without submitting a request fo r an evidentiary hearing, as required by local rule.")

In his position paper, Malone claims he should not have bee n sentenced for the 15.6 kilograms of cocaine seized in Utah. He also argue s that he is not liable for all the drugs involved in Counts 10 and 11 (drug

dealing using juveniles) or Count 7. Malone is correct that a PSR is "not
a legal ly sufficient basis for making findings on contested issues o f material fact," because the government must prove, by a preponderance of the evidence, all fac ts relied on by the sentencing court. United States
v. Hamm er , 3 F.3d 266, 272 (8th Cir. 1993), cert. denied , 510 U.S. 113 9 (1994). When a defendant disputes material facts in his PSR, th e sentencing court must either refuse to take those facts into account o r 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 th e preponderance-of-the-evidence standard. See Hammer , 3 F.3d at 271-72.

This c oncern does not apply here. At Malone's sentencing, th e 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 Stat es v. Greene , 41 F.3d 383, 386 (8th Cir. 1994) ("If the sentencing court chooses to make a findin g with respect to the disputed facts, it must do so on the basis of evidence , and not the

### -36-

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 qua ntities 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 cour t 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 groupe d the charges against Malone and Saunders into three groups of "closely

related counts," and calculated the adjusted offense levels appropriate fo r each group. Group 1 included the murder-for-hir e 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 a n increase "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants . . .." Ou r Cou rt has "broadly defined" the terms "organizer" and "leader." Unite d States v. Ortiz-Martinez , 1 F.3d 662, 677 (8th Cir.), cert. denied , 51 0 U.S. 936 (1993).

Re garding Malone's role in the drug-trafficking offense group, th e evidence showed that he "directed or procured the aid of underlings," and that he was responsib le 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 (b y co nvicting Malone on Counts 11 and 12) that Malone organized an d coordinated several juveniles' drug

### At Saunders's sentencing, the Court noted that "[t]he trial 1 3 

### testimony in this matter clearly shows the leadership role of the defendant as it applied to these proceedings." Saunders Sen tencing Hearing, at p. 17 (June 12, 1995). -37- dealing.
Saunders complains that the District Court gave him a four-leve l role enh ancement for the drug-dealing offenses but "offered neither a t sentencing nor in the written Statement any addi tional findings of fact to support this conclusion." The District Court found that Saunders wa s convicted for his role in a drug conspiracy involving at least five others , and that h e played an organizing and leadership role. For example , 13 Saunders s ent Chanise Lynn to Los Angeles to procure procaine for th e manufa cture of crack cocaine. While we do not pretend that the lin e between being an "organizer or leader," on the o ne hand, and a "manager or supervisor," on the o ther, 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 murk y inquiry."), we think the § 3B1.1(a) enhancements for Offense Group 2 were appropriate.

Saunders and Malone also received four-level role-in-the-offens e enhancements for Offense Group 1 (murder-for-hire). At Saunders' s se ntencing hearing, the District Court commented, "[i]t appears tha t [Saunde rs] was an organizer or leader of this criminal activity whic h involve d 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 matte r

. . .." However, because the District Court counted Prado and Lynn a s "par ticipants" for purposes of Offense Group 1, we think it erred i n 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 1 4 

### adju sted offense level was 43, and his Group 3 level was 8. Th e 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. Ha d Malone received no enhancement for hi s role in the Group 1 offenses, his Group 1 adjusted offens e level wo uld have been 32, and his total offense level would hav e been 43, not 44. See § 3D1.4(b). An offense level of 43 ca lls for a mandatory life sentence. Saunders's adjusted offense level for Group 1 (with the fo ur- 15 

### level role enhancement) was 36; his adjusted offense level fo r Group 2 was 42; and for Group 3, 10. The highest adjusted offense le vel was 42, and the District Court increased it by one unde r § 3D1.4 for a total offense level of 43. Had Saunders not r eceived any role enhancement for Group 1, his total offense level woul d have been 42, § 3D1.4(c), whi ch would have permitted the District Court to impose a 30-year sentence. -38- as a "participant" under § 3B1.1; a "participant" is "a person who i s 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) (pers ons who were not indicted or tried, but who were nonetheles s crimi nallyresponsible for defendant's crime, were "participants" unde r § 3 B1.1). As we discussed above, though, Prado and Lynn were no t 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 U nited States v. Lewis , 68 F.3d 987, 989-90 (6th Cir. 1995) (because person s 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 al l for his role in the Group 1 offenses, he would still be facing a mandatory life sentence. It is not necessary, therefore, to reman d 14 Malon e's case for resentencing. Saunders's case is different. Had h e received no role enha ncement for the murder-related group of offenses, he woul d have been eligible for a 30-year sentence. This is not to sa y 15 that, at resentencing,

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

### -39- Saunders won't again receive a four-level enhancement. Section 3B1.1(a) permits a four-level enhancement when a defendant is the leader o r organizer of a criminal activity that is "otherw ise extensive," and it may be that such an enhan cement 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 inv olved in Counts 10 and 11 (the Counts involving Malone's use o f juveniles in drug-dealing). The Court found tha t these drugs were part of the Saunders/Malone operation -- part of the overall conspiracy -- and wer e therefore attributable to Saunders. Saunders contends that the evidence does not support this finding. He admits, though, that he may be sentence d 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 furtheranc e of the jointly undertaken criminal activity, that occurred during th e commission of the offense of conviction . . .."). It is not necessary tha t Saunders have participated in distributing the d rugs himself, or even that he a ctually knew about the drugs, only that the drug quantities wer e reasonably foreseeable to him. See Darden , 70 F .3d at 1546. We think the District Court correc tly found that the 532.3 grams of crack were part of the operation's "over all activity" and were "part of the conspiracy count [on] which [Saunders] was convicted." 16

### -40- III.

We affirm

the convictions and sentences of Jai Jones, Larry Thomas, Calvin Delpit, and De nnell 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 convicti ons; and reverse Zackarrie Prado's interstate murder-for-hire conviction. We remand this case to the Di strict Court for further proceedings consistent with this opinion

. Saunders and Lynn should be re-sentenced, and th e indictment against Prado should be dismissed.

A true copy.

Attest:

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