REVISED

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 95-30998

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DON R WILSON, a/k/a BIG D ON; ALFRED L BROWN,

a/k/a GOAT; TROY BELLAMY, a/k/a BOW LEG;

SEBASTIAN RICHARDSON, a/k/a BAM BAM; REGINALD

D WILSON; a/k /a REG; DONALD R MILLER, a/k/a

BIG DADDY; PATRICK D MILLER, a/k/a PATCHY CAT;

RODERICK ALLEN, a/k/a BABY HULK; ALONZO BATES,

a/k/a LITTLE MAN; DEXTER D CHAMBERS, a/k/a

DEXTER HOLMES,

Defendants-Appellants.

Appeals from the United States District Court

For the Western District of Louisiana

June 26, 1997

Before REYNALDO G. GARZA, SMITH, and EMILIO M. GARZA , Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

A federal district court in Louisiana convicted d efendants,

members of a Shreveport, Louisiana street gang called the “Bottoms

Boys,” of various federal offenses related to their participation

in a drug trafficking conspiracy and a conspiracy to commit violent-2-

crimes in aid of racketeering. Defendants appeal their convictions

and sentences, raising a blizzard of legal challenges. We affirm

in part, vacate in part, remand in part for hearings, and remand in

part for a new trial.

I

The Bottoms Boys are a street gang operating in the Ledbetter

Heights neighborhood of Shreveport, formerly known as “the

Bottoms.” Until recently, members of the gang conducted a largescale, open-air drug market, primarily in the 1100 block of Fannin

Street. The Bottoms Boys controlled the sale of drugs within this

area; no one could sell within Bottoms Boys territory unless they

were members of the gang or received perm ission from one of the

leaders of the gang, the so-called “Original Gangsters” or “O.G.s.”

The Bottoms Boys had the reputation as the toughest gang in

Shreveport; anyone who crossed or “dissed” the gang often received

a violent, sometimes deadly, response. Firearms were a fashionable

Bottoms Boys accessory.

Defen dant Alfred Brown served as the gang’s principal drug

supplier. Testimony established that Brown would distribute

cocaine that he obtained in Houston to other leaders of the gang,

who would then “front” )) that is , distribute without payment up

front )) smaller amounts to memb ers, until rocks of crack cocaine

tumbled down to street level. Sales were highly lucrative; one

former gang member testified that in an average week he made about

$16,000 from drug sales. In addition, the gang had various-3-

“enforcers,” also called “reapers,” who enforced the rules of the

gang and protected its territory and drug trade through acts of

violence.

Police conducted a lengthy investigation of the gang.

Undercover law enforcement officers and government informants

purchased cocaine from gang members on several occasi ons, many

under the watchful eye of hidden surveillance cameras. Some of

these drug buys formed the basis for individual drug distribution

counts in the indictment; others served as tria l evidence in

support of the drug conspiracy. The investigation culminated in

the arrest of fourteen gang members. A federal grand jury returned

a thirt y-nine count indictment, charging thirteen members with

various federal offenses, including drug conspiracy, drug

distribution and possession with intent to distribute, conspiracy

to commit violent crimes in aid of racketeering, and firearms

charges.

In addition, the indictment charge d several defendants with

engaging in or threatening particular acts of violence in violation

of 18 U.S.C. § 1959(a). Don Wilson, one of the leaders of the

gang, directl y threatened Officer Robin Snyder while she was

inventorying property in a vacant house in the 1100 block of Fannin

street. Wilson told her: “Shine, I am going to fucking kill you.”

Reginald W ilson fatally shot twin brothers Michael and Mitchell

Henderson as they sat in their car in t he 1100 block of Fannin

Street. Patrick Miller shot and wounded Donny Williams, a memberThe jury convicted all defendants of drug conspiracy

under 21 U.S.C. § 846, and all defendants except Donald Miller of

at least one substantive drug offense under 21 U.S.C. § 841(a)(1).

Don Wilson, Sebastian Richardson, Alfred Brown, R eginald Wilson,

and Patrick Miller were convicted of violent crimes in aid of

racketeeri ng under 18 U.S.C. § 1959(a). Alfred Brown, Reginald

Wilson, and Patrick Miller were convicted of use of a firearm

during a crime of violence or drug trafficking crime under 18

U.S .C. § 924(c). Don Wilson was convicted of engaging in a

continuing criminal enterprise under 21 U.S.C. § 848(a).

-4- of a rival gang, after he and his companions “dissed” the Bottoms

Boys by “throwing” rival gang signs. The government presented

other, uncharged acts of violence as proof of participation in a

broad conspiracy to commit violent acts on behalf of the gang.

Two defendants pleaded guilty before trial, and the court

declared a mistri al as to another defendant for medical reasons.

Of the remainin g eleven defendants, the jury returned guilty

verdicts against all but one. 1 The district court denied

defendants’ motions for judgment of acquittal and new trial. After

sentencing, all ten defendants filed timely notices of appeal.

II

DRUG CONSPIRACY

A

Each defendant ar gues that the evidence was insufficient to

support his conviction for participation in the drug c onspiracy

under 21 U.S.C. §§ 841(a)(1) and 846. At trial, defendants moved

for acquittal, which the district court denied. We review a denial

of a motion for judgmen t of acquittal d e novo

. U nited States v.

Restrepo

, 994 F.2d 173, 182 (5th Cir. 1993). We must draw all-5-

reasonable inferences in favor of the v erdict and affirm the

convictions i f a reasonable jury could find that the evidence

establishes the guilt of the defendants beyond a reasonable doubt.

Id. The jury may choose among reasonable inferences from the

evidence, and the evidence need not exclude every hypothesis of

innocence. United States v. Okoronkwo , 46 F.3d 426, 430 (5th Cir.

1995), cert. denied

,

___ U.S.

___, 116 S. Ct. 107, 133 L. Ed. 2d 60

(1995).

To establish a drug conspiracy under 21 U.S.C. § 846, the

government must prove: (1) the existence of an agreement between

two or more persons to violate federal narcotics laws; (2) that the

defendant knew of the agreement; and (3) that the defendant

voluntarily participated in the agreement. U nited States v. Gallo

,

927 F.2d 815, 820 (5th Cir. 1991). No overt acts in furtherance of

the conspiracy need be alleged or proved. U nited States v.

Shabani , 513 U.S. 10, ___, 115 S. Ct. 382, 385, 130 L. Ed. 2d 225

(1994). The requisite elements may be proved by circumstantial

evidence, and “[c]ircumstances altogether inconclusive, if

separately considered, may, by their number and joint operation

. . . be sufficient to constitute conclusive proof.” U nited States

v. Roberts , 913 F.2d 211, 218 (5th Cir. 1990) (citation omitted),

ce rt. denied , 500 U.S. 955, 111 S. Ct. 2264, 114 L. Ed. 2d 716

(1991).

Most of the evidence at trial consisted of testimony of former-6-

g ang members and officers in the sting operation. Several

defendants urge that the evidence is insufficient to support their

convictions because it showed only that they were members of the

Bottoms Boys and that they had, at some point in time, sold drugs

on the 1100 block of Fannin Street. Although mere presence and

association with wrongdoers is insufficient to support a conspiracy

conviction, it is a factor that the jury may consider in

conjunction with other evidence in fi nding a defendant guilty of

the conspiracy. U nited States v. Lechuga , 888 F.2d 1472, 1476

(5th Cir. 1989). Once the government has shown the existence of an

illegal conspiracy, it need produce only “slight evidence” to

connect an individual defendant to the scheme. U nited States v.

Duncan , 919 F.2d 981, 991 (5th Cir. 1990), cert. denied , 500 U.S.

926, 111 S. Ct. 2036, 114 L. Ed. 2d 121 (1991).

Testimony of former gang members, government surveillance

video, and home movies made by the Bottoms Boys (later admitted

into evidence at trial) showed that all defendants were members of

the gang and that the gang was an organized, drug-dealing

enterprise. All defendants sold drugs on Bottoms Boys turf; the

evidence showed that this was impossible absent membership in the

gang or without permission from one of the original gangsters, or

“O.G.s,” such as Don Wilson. A rational jury could infer voluntary

participation in the conspiracy from these facts.

Next, the defenda nts argue that there is a prejudicial-7-

variance between the indictment, which charges a single conspiracy,

and the proof at trial, w hich they suggest tends to show the

existence of multiple conspiracies. The principal considerations

for determining whether the evidence supports a single conspiracy

or multiple conspiracies are (1) the existence of a common goal,

(2) the nature of the scheme, and (3) the overlapping of the

participants in the various dealings. United States v. Morris , 46

F.3d 410, 415 (5th Cir.), cert. denied

,

___ U. S. ___, 115 S. Ct.

2595, 132 L. Ed. 2d 842 (1995). In examining these factors, "[w]e

must affirm the jury's finding that the government proved a single

con s piracy unless the evidence and all reasonable inferences,

examined in the light most favorable to the gove rnment, would

preclude reasonable jurors from finding a single conspiracy beyond

a reasonable doubt." Id. (citation omitted).

The goal of selling cocaine for profit satisfies the commongoal requirement. U nited States v. Maceo

, 947 F.2d 1191, 1196 (5th

Cir. 1991), cert. denied

, 503 U.S. 949, 112 S. Ct. 1510, 117 L. Ed.

2d 647 (1992). With respect to the nature of the scheme, we look

at the degree of interdependence of the actions of members of the

conspiracy )) that is, whether the activities of one aspect o f the

scheme are necessary or advantageous to the success of another

aspect of the scheme. U nited States v. DeVarona

, 872 F.2d 114, 118

(5th Cir. 1989). With respect to the required nexus among

participants, there is no requirement that every memb er must-8-

participate in every transaction to find a single conspiracy.

Parties who knowingly participate with core conspirators to achieve

a common goal may be members of a single conspiracy. United States

v. Richerson

, 833 F.2d 1147, 1154 (5th Cir. 1987). If the

conspiracy functions through a division of labor, each participant

need not have an awareness of the existence of the other members,

or be privy to the details of each aspect of the conspiracy. Id.

Don Wilson (whose brief was adopted by all other defendants)

argues that the evidence fails to satisfy the second and third

requirements for a single conspiracy. Wilson argues that the

evidence showed that sellers on Fannin Street sold drugs in

competition with one another, not in concert; therefo re, he

asserts, there was no showing of interdependence between the

various aspects of the alleged conspiracy. Moreover, Wilson argues

that, although the evidence showed that he, Brown, and Richardson

each “e mployed” other gang members to sell drugs, the government

did not demonstrate any overlap among workers in these smaller

conspiracies.

The government, however, cites to sufficient evidence in the

record to support a jury finding of a single, ove rarching

conspiracy. The fact that individual dealers sold in competition

with one another does not preclude a finding of a single

conspiracy. U

nited States v. Ross

, 58 F.3d 154, 158 (5th Cir.),

cert. denied

,

___ U.S.

___, 116 S. Ct. 404, 133 L. Ed. 2d 323-9-

(1995). The jury could infer from the evidence that the

competition was not cutthroat rivalry, but friendly competition

among those pursuing a common goal as Bottoms Boys gang members.

Moreover, the organizational structure of the gang supports a

finding of a single conspiracy. Testimony established that the

gang’s structure included organizers, suppliers, middlemen, street

sellers, a nd “reapers” who protected the gang’s “turf.”

Apparently, Brown was the main drug supplier for the “O.G.s” (Don

Wilson, Reginald Wilson, Sebastian Richardson, and Donald Miller),

who then fronted drugs to other gang members, who sold directly on

the street. In fact, the government asserts that the testimony at

trial shows that every defendant received some, if not all, of his

cocaine from Brown, either directly or indirectly. A single

c onspiracy may exist between two or more individuals selling in

competition with one another who share a common supplier, Ross

, 58

F.3d at 158, or who knowingly participate with the same core

conspirators in pursuit of a common goal. Richerson , 833 F.2d at

1154. We have held that a “single conspiracy exists where a ‘key

man’ is involved in and directs illegal activities, while various

combinations of other participants exert individual efforts toward

a common goal.” Morris , 46 F.3d at 416.

The jury’s determination that a single drug conspiracy existed

in this case does not involve particularly complicated evidence or

facts that were likely to confuse triers of fact. Much of the-10-

conspiracy evidence was direct testimony about drug sales and the

organization of the conspiracy. After review of the evidence in

the record, we conclude that a reasonable jury could find, beyond

a reasonable doubt, the existence of a sin gle drug conspiracy

involving each defendant. Accordingly, we find no error in the

district court’s denial of the motion to acquit.

B

The defendants assert that the district court erred in

determining the quantity of drugs attributable to them for the

purposes of sentencing. In sentencing a defendant for

participation in a drug conspiracy, the court must make findings

with respect to (1) when the defendant joined the conspiracy, (2)

what drug quantities were within the scope of the agreement, and

(3) what quantities the defendant could reasonably foresee being

sold by the co nspiracy. United States v. Carreon , 11 F.3d 1225,

1236 (5th Cir. 1994). Relevant conduct under Sentencing Guidelines

§ 1B1.3(a)(1)(B) includes all reasonably foreseeable acts of others

in furtherance of the conspi racy. United States Sentencing

Commission, Guidelines Manual

, § 1B1.3(a)(1)(B), comment. (n.1)

(1995). However, the reasonable foreseeability of all drug sales

does not automatica lly follow from membership in the conspiracy.

United States v. Puig-Infante , 19 F.3d 929, 942 (5th Cir.), cert.

denied

, 513 U.S. 864, 115 S. Ct. 180, 130 L. Ed. 2d 115 (1994). We

review the district court’s determination of releva n t conduct-11-

during sentencing for clear error. U nited States v. Rivera

, 898

F.2d 442, 445 (5th Cir. 1990).

Several defendants argue that the district co urt failed to

make the required specific findings with respect to time frame of

membership, overall quantity, and reasonable foreseeability of drug

sales. However, the district court determined the dates of

m embership in the conspiracy for each defendant and adjusted the

quantities attributable to him accordingly. The court did not

accept speculative testimony or extrapolate to compute the quantity

of drugs sold. It used only two sources to calculate a m inimum

drug quantity for relevant conduct purposes: documented evidence of

actual drug transactions totaling 25.45 grams of crack cocaine and

.78 grams of powder cocaine, and sales admitted by co-conspirator

Rashaun Kimble totaling 266 grams of crack cocaine and 112 grams of

powder cocaine. Finally, in making its reasonable foreseeability

determination, the court specifically found that each defendant was

aware of the acts of all. We find that these explicit findings

satisfy the court’s duty under Carreon

.

The defendant s also argue that the district court erred in

including the amounts sold by Rashaun Kimble in their quantity

determinations, because these sales had no connection to them and

were not reasonably foreseeable. However, Kimble was an admitted

member of the conspiracy. Kimble testified that he was a Bottoms

Boy, that he sold drugs in the 1100 block of Fannin, and that he-12-

received his cocaine from Brown. The evidence at trial showed that

defendants all sold drugs in the open on the same block, and that

it was impossible to sell drugs at that location without the gang’s

permission. The nature of the open-air drug market on Fannin

Street supports the district court’s finding that the full volume

of sales, including Kimble’s, was foreseeable, if not actually

witnessed, by the defendants.

III

VIOLENT CRIMES IN AID OF RACKETEERING

Reginald Wilson, Don Wilson, and Patrick Miller challenge the

sufficiency of the evidence used to convict them of committing

certain violent crimes in aid of racketeering in violation of 18

U.S.C. § 1959(a) (“VICAR”). The three, along with Alfred Brown and

Sebastian Richard son, also challenge the sufficiency of the

evidence to support their convictions for participation in a VICAR

conspiracy. Section 1959(a) provides in pertinent part:

Whoever,

. . . for the purpose of . . . maintaining or

increasing position in an enterprise engaged in

racketeering activity, murders,

. . . maims, as saults

with a dangerous weapon, commits assault result ing in

serious bodily injury upon, or threatens to commit a

crime of violence in violation of the laws of any State

or the United States, or attempts or conspires so to do,

shall be punished ))

(1) for murder, by death or life imprisonment,

or a fine under this title, or both; . . .

(3) for assault with a dangerous weapon or

assault resulting in serious bodily injury, by

imprisonment for not more than twenty years or

a fine under this title, or both;

(4) for threatening to c ommit a crime of

violence, by imprisonment for not more than

five years or a fine under this title, or

both;-13- (5) for attempting or conspiring to commit

murder or kidnapping, by imprisonment for not

more than ten years or a fine under this

title, or both; and

(6) for attempt ing or conspiring to commit a

crime involving maiming, assault with a

dangerous weapon, or assault resulting in

serious bodily injury, by imprisonment for not

more than three yea rs or a fine under this

title, or both.

According to the definitions section of 18 U.S.C. § 1961(1), drug

trafficking constitutes “racketeering activity” for the purposes of

VICAR under 18 U.S.C. § 1959(b)(1).

A

The jury convicted Don Wilson of threatening to kill Officer

Robin Snyder (count six) and convicted Patrick Miller of shooting

Donny Williams (count fourteen). In reviewing a challenge to the

sufficiency of the evidence, the court of ap peals asks “whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia

, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.

Ed. 2d 560 (1979); U nited States v. Krenning

, 93 F.3d 1257, 1262

(5th Cir. 1996). To prove a substantive VICAR offense, the

government must show that the defendant committed the violent act

for the purpose of maintaining or increasing his position in an

association or enterprise engaged in racketeering activity. U nited

States v. Fiel

, 35 F.3d 997, 1003 (4t h Cir. 1994), c ert. denied

,

___ U.S.

___, 115 S. Ct. 1160, 130 L. Ed. 2d 1116 (1995). Self--14-

promotion need not be the defendant’s sole or primary concern;

rather, Congress intended to proscribe violent acts committed “‘as

an integral aspect of membership’ i n such enterprises.” U nited

States v. Concepcion

, 983 F.2d 369, 381 (2d Cir. 1992) (citation

omitted), cert. denied

, 510 U.S. 856, 114 S. Ct. 163, 126 L. Ed. 2d

124 (1993).

Don Wilson and Patrick Miller do not deny that they committed

the act s alleged. However, they argue that the government

presented no evidence showing that they committed the charged

offenses in order to maintain or increase their positions within

the gang. Former gang members Howard Richardson, James Bledsoe,

and Rashaun Kimble and witness Donny Watts testified at trial that

Wilson often carried guns, and Richards on testified that Wilson

acted as an enforcer or “reaper” who “put[] in work” upholding the

Bottoms Boys’ territory and protecting the drug trade. “Reapers”

received their ominous title based on their willingness to commit

violent acts on behalf of the gang; Richardson described a “reaper”

as “the person that when your number is up is called for your soul

that comes to get you.” From this evidence, the jury could

reasonably have inferred that Wilson was acting in his capacity as

a “reaper” when he threatened Officer Snyder and that such threats

(or worse) were expected of him based on his position within the

gang.

Similarly, the government presented evidence that various-15-

individuals, includ ing the victim, were “throwing” rival “gang

signs” just b efore Patrick Miller shot Donny Williams. Gangs

generally identify themselves with hand gestures. Howard

Richardson testified that when a member of the Bottoms Boys flashed

his gang sign in an upward direction to a member of another gang,

the second individual would flash his own gang sign “up” followed

by the Bottoms Boys’ sign “down,” thus signaling that he was “down

with” the Bottoms Boys )) that is, that he respected them.

Richardson testified that violation of gang sign protocol )) for

example, by failing to give a “down” acknowledgment )) cons tituted

“dissing,” or disrespect to the gang, and members were expected to

retaliate with violence in the event of such an affront. Otherwise

they were “punked out” and considered “bitched” )) that is, they lost

the respect of fellow gang members.

Although the VICAR statute does not crimina lize mere

retaliation for “dissing” an individual or a social organization,

the statute does criminalize violent acts committed as an integral

aspect of membership in a racketeering enterprise. I d

. Drug

trafficking is a dangerous business; Howard Richardson te stified

that the Bottoms Boys carried weapons for the express purpose of

protecting themselve s and their drugs from other gangs. Gang

members protected the “turf” of the Bottoms Boys’ drug trafficking

operation by promoting their image as the “toughest gang in

Shreveport” and a force “not to b e messed with.” Under these-16-

facts, a reasonable jury could find that violent retaliation for

acts of disrespect promoted the goals of illegal enterprise.

Williams testified at tri al that he was dissing the Bottoms

Boys that night, refusing to flash the “down” sign and calling the

gang the “Booty Boys.” A jury could reasonably infer that, because

of Miller’s membership in the gang, he was required to respond

violently to Williams’s poor signing etiquette. S ee United States

v. Tipton

, 90 F.3d 861, 891 (4th Cir. 1996) (finding purpose

element for VICAR offense s atisfied by enterprise with policy of

treating affronts t o members as affronts to all and expecting

violent retaliations by enterprise’s members), petition for cert.

filed

,

___ U.S.L.W.

___ (Jan. 27, 1997) (No. 96-7692); Fiel

, 35

F.3d at 1004 (f inding that rational jury could conclude that

defendants believed that participation in violent war against rival

gang was expected of them by reason of their membership in gang);

United States v. Boyd

, 792 F. Supp. 1083, 1102 (N.D . Ill. 1992)

(find ing that purpose element is satisfied where government

presented evidence that committing violent acts was one way to move

up within the gang and that aversion to such acts would “ invite

trouble” from other gang members). Therefore we hold that a

rational trier of fact could have found the essential elements of

a VICAR offense beyond a reasonable doubt, and we uphold the

convictions of Don Wilson and Patrick Miller on this count.

The jury also convicted Reginald Wilson of committing a VICARThe evidence is also sufficient to support Reginald

Wilson’s conviction for participation in the general VICAR

conspiracy under count one, even though we vacate and remand his

conviction for the substantive VICAR offense of count nine. S ee

Section VII.A, infra

.

-17- offense in the fatal shooting of Michael and Mitchell Henderson.

For the same reasons articulated in this section, we find that the

evidence was suffic ient to convict Reginald Wilson for the VICAR

count. However, as explained in Section VII.A i nfra

, we vacate

Wilson’s conviction on this count for an independent reason, and we

remand for a new trial.

B

We also reject all five defendants’ challenges to their VICAR

consp iracy convictions under Count One of the indictment. 2 In

addition to the substantive VICAR offenses charged in the

indictment, the government presented extensive testimony concerning

violent acts committed by members of the Bottoms Boys. Howard

R ichardson testified to instances where customers were sh ot,

stabbed, “snatched out of cars and beat,” and “throwed to the

dog” ) ) a punishment in which gang members toss the offending

individual over a fence into a yard with guard dogs. In addition,

Richardson testified that rival gang members who came into the

Bottoms without consent were beaten or shot. If anyone attacked a

Bottoms Boy, gang members would o rganize a drive-by shooting in

retaliation.

The evidence de monstrates that each defendant knew that-18-

commissio n of violent acts was expected of him by virtue of his

memb ership in the gang and that each willingly joined the

enterprise, thereby agreeing to commit those violent acts. For

example, testimony established that Bottoms Boys were expected to

r etaliate against those who “dissed” the gang; that members

regularly carried guns to protect the drug trade and that they

often used those guns when drug deals went awry; and that Reginald

Wilson and Sebastian Richardson, like Don Wilson, were “reapers”

who regularly committed violent acts o n behalf of the gang. In

addition, testimony revealed that Brown, as the main supp lier of

the gang, paid Don Wilson to protect his person and his drugs, thus

entering into an express agreement to commit violent crimes where

necessary. We find that the evidence is sufficient for a rational

jury to find that all the defendants conspired commit violent acts

as an integral part of membership in the gang.

IV

SUFFICIENCY OF THE INDICTMENT

Richardson argues that count one of the indictment is fatally

defective because it charges defendants with a crime that does not

exist. Don Wilson, Brown, Reginald Wilson, and Patrick Miller join

in this challenge by incorporation of Richardson’s brief. Count

one charges defendants with participatio n in a VICAR conspiracy

under 18 U.S.C. § 1959(a)(5) and (6) by alleging that defendants

“did knowingly combine, conspire

, and confederate to commit murder,

attempted murder

, and assaults with dangerous weapons

. . . in-19-

violation of the laws of the State of Louisiana.” (emphasis

a dded). Defendants argue that “conspiracy to commit attempted

murder” does not constitute a crime and thus the indictment is

legally insufficient to support their convictions under count one.

We agree that “conspiracy to commit attempted murder” is not

a cognizable offe nse under 19 U.S.C. § 1959, both as a matter of

statutory construction and common sense. U nited States v. Meacham

,

626 F.2d 503, 507-09 & n.7 (5th Cir. 1980) (holding that

“conspiracy to attempt” is not offense under drug con spiracy

statutes and noting that “it would be the height of absurdity to

conspire to commit an attempt, an inchoate offense, and

simultaneously conspire to fail at the effort”), cert. denied

, 459

U.S. 1040, 103 S. Ct. 455, 74 L. Ed. 2d 608 (1982). However, we do

not find that this drafting error warrants au tomatic reversal.

Unlike in Meacham

, the indictm ent here charged defendants with

conspiracy to commit murder and assault with a deadly weapon, in

addition to attempted murder. Although one of the objects of the

conspiracy in count one fails to allege a cognizable offense, the

other two objects are clearly sufficient unde r section 1959(a).

Defendants do not allege that the indictment did not adequately

apprise them of the charges against them or prejudice their defense

in any way due to the inclusion of “attempted murder” as one of

three possible objects. Our only concern is whether the jury

convicte d defendants of VICAR conspiracy based on a permissible-20-

ground.

In Yates v. United States , the Supreme Court stated that, in

the criminal context, “a verdict [must be] set aside where [it] is

supportable on one ground, but not on another, and it is impossible

to tell which ground the jury selected.” 354 U.S. 298, 312, 77 S.

Ct. 1064, 1073, 1 L. Ed. 2d 1356 (1957), o verruled on oth e r

grounds

, Burks v. United States

, 437 U.S. 1, 98 S. Ct. 2141, 57 L.

Ed. 2d 1 (1978). The Court recently limited the Y ates rule,

distinguishing between legally and factually insufficient grounds

for conviction. A general verdict may stand where one of several

objects of the conspiracy lacked adequate e videntiary support if

the evidence was sufficient to support the other objects. G riffin

v. United States

, 502 U.S. 46, 60, 112 S. Ct. 466, 474, 116 L. Ed.

2d 371 (1991). However, where the verdict may have rested on a

ground t hat, although supported by the evidence, was l egally

inadequate, the Yates rule still applies and the general verdict

must be reversed. Id . at 60, 112 S. Ct. at 474.

We find that the indictment for conspiracy to attempt in the

instant case was both legally defective and factually unsupported

by the evidence. Because the government offered no proof at trial

of a conspiracy to attempt, we find that there is no possibility

that the jury convicted the defendants on the improper charge and

that the plaintiffs were therefore not prejudiced by the legal

error. To the extent that the jury found the defendants guilty of-21-

the conspiracy count, they must have based their conviction on the

trial evidence of conspiracy to commit murder and assault with a

deadly weapon.

We hold that Griffin

, not Yates

, applies where one of several

charged objects of a conspiracy is factually insufficient, even if

that object is also legally insufficient. Where, as in this case,

no evidence was ever presented to support the legally flawed

charge, there is little danger that the jury convicted on that

impermissible ground. See Griffin , 502 U.S. at 58, 112 S. Ct. at

474 (noting that jurors are well equipped to analyze evidence and

choose between factually sufficient and insufficient grounds).

Thus, we reject the defendants’ assertion that count one of the

indictment is fatally defective.

V

BRADY CHALLENGES

Next, defendants raise two challenges concerning the

government's execution of its duty to disclose exculpatory evidence

under Brady v. Maryland

, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97,

10 L. Ed. 2d 215 (1963).

A

Reginald Wilson contends that the government’s f ailure to

produce handwritten notes made by investiga tors during witness

interviews violated his rights under the Jencks Act, 18 U.S.C. §

3500, and the Supreme Court’s holding in Brady . Wilson requested

production of the notes before trial, and all other defendantsThe district court did, in fact, review one set of notes

taken during an interview with Rashaun Kimble, determined that they

contained no Brady material, and filed them in the record under

seal. However, the government admitted that additional notes taken

during other interviews existed, and the court ordered that these

additional notes be produced for in camera review.

-22- adopt this argument by incorporation. The government affirmatively

stated that the notes existed, and the court ordered that the

government produce them for i n camera review. 3 Later, during

tri al, defense counsel again requested that the court review the

notes in camera to determine their Brady significance, and the

court replied that it would. However, the record does not reflect

whether , or to what extent, the district court actually reviewed

the notes in question or whether they contain Brady material. The

government did not brief this issue, nor did it adequately respond

to direct questioning from this panel during oral argument.

Failure to disclose exculpatory evidence by the government is

reversible only if the evidence is material in the sense that its

suppres sion undermines confidence in the outcome of the trial.

United States v. Bagley

, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381,

87 L. Ed. 2d 481 (1985). The Supreme court has held that favorable

evidence is material, even when not requested by the defendant, “if

there is a reasonable probability that, h ad the evidence been

disclosed to the defense, the result of the proceeding would have

been different.” B agley

, 473 U.S. at 682, 105 S. Ct. at 3383

(opinion of Blackmun, J.); i d

. at 685, 105 S. Ct. at 3385 (White,-23-

J., concurring in part and concurring in judgment). The

suppression of such material evidence only amounts

to a Brady violation when, in the a bsence of such evidence, the

verdict is unworthy of the court’s confidence. Kyles v. Whitley

,

514 U.S. 419,

___, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995);

Bagley , 473 U.S. at 678, 105 S. Ct. at 3381.

Because defendants do not have the notes in question, they are

unable to claim a reasonable probability that informati on in the

notes would undermine confidence in their verdicts, or t hat the

no tes contain any B rady material at all. Although we will not

ordinarily remand for in camera review based on purely speculative

allegations of the existence of Brady material, see United States

v. Dinitz , 538 F.2d 1214, 1224 (5th Cir. 1976), cert. denied , 429

U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 556 (1977), the district

court actually granted Wilson’s request for in camera re view and

ordered production of the notes; we simply do not know the district

court’s conclus ions or whether the government even complied with

the court’s request for the notes.

We therefore remand this matter so that the district court may

supplement the record with its findings and the notes, under seal

if necessary, if it has already reviewed their contents . If the

court has not yet reviewed the notes, then it should do so within

the next thirty days, in camera

, nunc pro tunc

, to determine

whether the notes contain any Brady material. U nited States v.-24-

Thomas

, 12 F.3d 1350, 1365 (5th Cir.), cert. denied

, 511 U.S. 1095,

114 S. Ct. 1861, 128 L. Ed. 2d 483 (1994), and cer t. denied , 511

U.S. 1114 , 114 S. Ct. 2119, 128 L. Ed. 2d 676 (1994). If the

district court concludes that the notes contain no Brady material

or that their suppression does not undermine confidence in the

verdicts, it should supplement the record with the notes and make

sufficiently detailed findings to enable us to review its decision.

Id

. ; United States v. Welch

, 810 F.2d 485, 491 (5th Cir.), cert.

denied

, 484 U.S. 955, 108 S. Ct. 350, 98 L. Ed. 2d 376 (1987). If

defendants seek to chal lenge the district court’s determination,

t hey need not file a new appeal; they may instead file certified

copies of the district court’s findin gs and, if necessary,

supplementary briefs or other materials for review by this panel.

Thomas , 12 F.3d at 1365; Welch , 810 F.2d at 491. However, if the

court finds that the notes contain Brady material that undermines

confidence in any defendant’s verdict, the court should vacate only

the convictions that the notes call into doubt and grant a new

trial for each. Thomas , 12 F.3d at 1365; Welch , 810 F.2d at 491.

B

Sebastian Richardson argues that the government violated its

Brady duty by failing to disclose that Richardson’ s brother,

prosecution witness Howard Richardson, was taking the antipsychotic

drugs Haldol, Lithium, and Elavil at the time of his testimony.

Richardson’s challenge, like Wi lson’s, has been adopted by all-25-

other defendants. Richardson asserts that failure to disclose this

evidence severely hampere d the defendants’ ability to attack

Howard’s competence to testify.

Impeachment evidence, like exculpatory evidence, is subject to

disclosure under Brady

. B agley

, 473 U.S. at 676, 105 S. Ct. at

3380. However, to prevail under B rady

, Richardson must first show

that the prosecution violated a duty of disclosure. E ast v. Scott

,

55 F.3d 996, 1002 (5th Cir. 1995). The government asserts that it

was u naware that Howard Richardson had been prescribed antipsychotic m edication until after trial, and Sebastian Richardson

does not suggest otherwise. Although Richardson suggests that the

government should be deem ed to have had constructive knowledge

based o n a broad duty to investigate, a prosecutor has no duty

under Brady to investigate the mental state of its witnesses in

order to uncover impeachment evidence for the defense. E ast

, 55

F.3d at 1003-04.

VI

ADMISSION OF EVIDENCE AT TRIAL

Defendants argue that the district court erred in admitting

into ev idence a videotape made by gang members, as well as in

admitting statements made by Sebastian Richardson to an undercover

police officer. We review a district court’s evidentiary rulings

for abuse of discretion. United States v. Vasquez , 953 F.2d 176,

182 (5th Cir.), cert. denied

, 504 U.S. 946, 112 S. Ct. 2288, 119 L.

Ed. 2d 212 (1992).-26- A

During the investigation, the government confiscated a

videotape made by one of the gang members showing other gang

m embers, including many of the defendants, drinking, smok ing

marijuana, throwing gang signs, going on a “gangsta ride,” firing

weapons, threatening the police, and discussing drug transactions.

The prosecution showed the so-called “Ford Park video” to the jury

over the objections of Bellamy, Brown, and Reginald Wilson. On

appeal, the defendants argue that the district court erred in

admitting the tape under Fed. R. Evid. 403 because its extreme

prejudice outweighed its probative value. In addition, they argue

that statements made on the tape by gang members constituted

inadmissible hearsay under Fed. R. Evid. 801.

The video, made by gang members for gang members, was highly

probative of association for purposes of both the drug and VICAR

conspiracies, and it corroborated the testimony of many of the

government’s witnesses. We cannot say that the district court

abused its discretion in holding that the tape’s prejudicial effect

did not outweigh its probative value as to any defendant.

Moreover, statements in the video made by gang members concerning

drug transactions and guns were m ade in furtherance of the

conspiracy and thus fall under the hearsay ex ception in Rule

801(d)(2)(E).

B

During the federal investigation, Special Agent Calvin Shivers-27-

went undercover, telling Sebastian Richardson that he was a movie

producer who needed ideas for a script about gangs. In response,

Richardson thoroughly described the Bottoms Boys organization,

which Shivers recorded on tape. Richardson even drew a diagram of

how the drug distribution network was organized. In the process,

Richardson named Alfred Brown as the “man with the sac [sic]” at

the top of the organizational chart. The government enlarged this

exhibit to poster size for introduction at trial and, over the

objection of defense counsel, closed its case with Agent Shivers’s

testimony detailing Richardson’s description of how the gang

operates. The court sustained defendants’ objection that

Richard son's statements did not fall within the co-conspirator

exception of Fed. R. Evid. 801(d)(2)(E) because they were not made

in furtherance of the conspiracy. The court therefore admitted the

statements for use against Richardson only as adm issions of a

party-opponent under Rule 801(d)(2)(A) and gave a limiting

inst ruction to that effect. However, the government repeatedly

referred to the chart in closing as evidence against all defendants

and against Brown specifically, referring to him as the “man with

the sack.”

Defendants argue that the introduction of this testimony and

exhibit violated their rights under the Confrontation Clause of the

Sixth Amendment. Richardson’s statements to Agent Shivers were not

made in furtherance of the conspiracy and were therefore

ina dmissible against any defendant other than Richardson. A-28-

district court viol ates a defendant’s Sixth Amendment right of

confrontation when, in a joint trial, it admits a no ntestifying

defendant’s extrajudicial statement implicating another defendant

in the crime. B ruton v. United States

, 391 U.S. 123, 126, 88 S.

Ct. 1620, 1622, 20 L. Ed. 2d 476 (1968). However, B ruton does not

come into play “unless a co-defendant’s statement directly alludes

to the complaining defendant,” even if it is apparent that “the

defendant was implicated by some indirect reference.” U nited

States v. Cartwright

, 6 F.3d 294, 300 (5th Cir. 1993), cert.

denied

, 513 U.S. 106 0, 115 S. Ct. 671, 130 L. Ed. 2d 604 (1994).

Richardson mentioned only Alfred Brown by name, and did not refer

to any other defendant specifically, thus the Bruton /Confrontation

Clause arguments of all other defendants fail.

However, as to Brown, Brut on is plainly implicated. Brown

could not cross-examine Richardson to determine the veracity of the

statement s made or to reveal whether Richardson was merely

“puffing” to impress Agent Shivers. A limiting instruction by the

court in such a case is insufficient to remedy the constitutional

violation. C ruz v. New York

, 481 U.S. 186, 193-94 , 107 S. Ct.

1714, 1719, 95 L. Ed. 2d 162 (1987) (“[W]here a nontestifying

codefendant’s confession incriminating the defendant is not

directly admissible against the defendant, the Confrontation Clause

bars its admission at their joint trial, even if the jury is

instructed not to consider it against the defendant, and even if-29-

the defendan t’s own confession is admitted against him.”)

(citations omitted); United States v. Jobe

, 101 F.3d 10 46, 1067

(5th Cir. 1996) (holding that limiting instruction cannot rectify

actual Bruton error, but finding no such error).

We therefore find that admissi on of this uncorroborated

evidence, even with a limiting instruction, was an abuse of

discretion. Furthermore, the district court abused its discretion

in overruling defendants’ objection to the government’s misuse of

the sting evidence during its closing. The prosecutor’s arguments

at closing were patently impermissible given the limited purposes

for which the court admitted the evidence. S ee Un ited States v.

Flores-Chapa

, 48 F.3d 156, 1 59-61 (5th Cir. 1995) (overturning

conviction where prosecutor had repeated hea r say testimony at

closing argument, despite two previously sustained object ions to

testimony at trial). The prosecutor’s use of such evidence against

Brown violate d his constitutional rights under the Confrontation

Clause.

Upon a showing of the denial of a constitutional right, we

must reverse a conviction unless the error is harmless beyond a

reasonable doubt. C hapman v. California

, 386 U.S. 18, 24-25, 87 S.

Ct. 824, 827-28, 17 L. Ed. 2d 70 5 (1967). A B ruton error is

harmless where the weight of other evidence clearly implicates the

defendant. J obe

, 101 F.3d at 1067; United States v. Kelly , 973

F.2d 1145, 1150 (5th Cir. 1992). The record is filled with in--30-

court testimony of Brown’s involvement in the conspiracy as an

"O.G." and as its major supplier. Both Howard Richardson and John

Palmer testified that Brown made trips to Houston to buy cocaine

that he would then distribute among gang members. Other witnesses

link Brown as a direct or indirect supplier to all of the other

defendants . In light of the abundant independent evidence of

guilt, Richardson’s chart and description were merely cumulative.

Therefore, we find that the Bruton error was harmless beyond a

reasonable doubt.

VII

CHALLENGES BASED ON THE SHOOTINGS OF THE HENDERSON TWINS

A

Reginald Wilson contends that the distri ct court erred in

denying his motion to sever his trial from that of his c o

conspirators, because his co-defendants were the only witnesses who

could verify his VICAR defense, that he killed the Henderson twins

in self-defense. Wilson confessed to gunning down the twins as

they sat in their car but claims that he fired only after seeing

one of the twins reach for a weapon. Police later found a

semiautomatic pistol in the twins’ car. Although counsel laid a

foundation for the self-defense theory in opening argument, Wilson

did not call any witnesses to support his the ory. The jury

rejected Wilson's claim of self-defense and convicted him of

committing a violent crime in aid of racketeering under 18 U.S.C.

§ 1959 and using a firearm during a crime of violence under 18-31-

U.S.C. § 924(c).

At the conclusion of the trial, the government stipulated that

co-defendants Sebastian Richardson, Alonzo Bates, and Alfred Brown

would have corroborated Wilson’s self-defe n se testimony. The

g overnment further stipulated that, if those defendants had

actually been called to testify as witnesses at the joint trial,

they would have asserted their constitutional right against selfincrimination under the Fifth Amendment. Wilson contends that the

court’s failure to sever his trial deprived him of the

corroborating testimony of co-defendants.

We review for abuse of di scretion the district court’s

decision to try defendants jointly, United States v. Neal

, 27 F.3d

1035, 1044-45 (5th Cir. 1994), cert. denied

, 513 U.S. 1008, 115 S.

Ct. 530, 130 L. Ed. 2d 433 (1994), and to deny a motion for new

trial. J obe

, 101 F.3d at 1057. The Supreme Court has held that “a

defendant might suffer prejudice if essential exculpatory evidence

that would be available to a defendant tried alone were unavailable

in a joint trial.” Z afiro v. United States

, 506 U.S. 534, 539, 113

S. Ct. 933, 938, 122 L. Ed. 2d 317 (1993). To make such a showing,

Wilson must demonstrate a bona fid e need for the co-defendants’

testimony, the substance of their testimony, the exculpatory nature

and effect of such testimony, and that the co-defendant would in

fact testify. Neal , 27 F.3d at 1047. We think that Wilson, with

the help of the government’s stipulations, has done this. The co-Donald Miller, Dexter Chambers, and Roderick Allen also alleged that

the district court abused its discretion by failing to try them separately from

their co-conspirators. We find their claims, individually and to the extent

incorporated by other defendants, to b e without merit. S ee United States v.

Pe Á a-Rodriguez

, 110 F.3d 1 120, 1129 (5th Cir. 1997) (finding no abuse of

discretion in refusing to sever where culpability of each defendant was clearly

and distinctly proven and thus there was no danger that crim inal acts of some

would be carried over to others).

-32- defendants were all eyewitnesses to the shooting, and the

government stipulated at trial that those witnesses would verify

Wilson’s account, which would be exculpatory evidence.

The government contends that there was no bona fide need for

the testimony of co-defen dants. There were six additional

eyewitnesses to the shooting who were not on trial that Wilson

could have called to testify. However, Wilson claims that only his

co-defendants were in a position to see the t wins reach for a

weapon. Wilson claims that his co-defendants would testify to this

very fact; each gave a statement to the police shortly after the

shooting that corroborates Wilson’s accou nt. The government has

stipulated that the co-defendants’ testimony would be exculpatory.

Under these circumstances, we vacate Wilson’s conviction on count

nine and remand for new trial. 4

The jury also convicted Wilson under 18 U.S.C. § 924(c), for

using a firearm during and in relation to this federal VICAR

offense. However, because the firearm conviction depends on the

commission of another crime, the government cannot convict Wilson

under section 924(c) unless he has been convicted of the underlying

VICAR offense. Because we have remanded Wilson’s conviction forU.S.S.G. § 2E1.3 gove rning VICAR offenses instructs the court to

impose a base offense level of twelve or the base offense level applicable to the

underlying offense, whichever is greater.

-33- the underlying federal crime, we vacate his derivative conviction

under section 924(c) in count ten and remand for a new trial.

B

Richardson an d Brown argue that the district court erred in

calculati ng their base offense levels for the VICAR conspiracy

conviction using the offense level for second-degree murder under

U.S.S.G. § 2A1.2 rather than the alternative minimum base offense

level provided i n section 2E1.3. 5 The district court applied the

higher offense level based on statemen ts made by Richardson and

Brown to police following the shooting of the Henderson twins by

Reginald Wilson. Specifically, Richardson and Brown told police

that one of the twins reached for what they thought was a gun

immediately before Wi lson shot them. The Caddo Parish District

Attorney decided not to prosecute Wilson, partly on the basis of

Richardson’s and Brown’s statements.

Richardson’s and Brown’s presentence reports (“PSRs”), which

were adopted by the district court, found that their statements

were inco nsistent with the ultimate jury verdict, which rejected

Wilson’s claim of self-defense. On this ground alone, the PSRs

concluded that Richardson and Brown had lied in furtherance of the

VICAR conspiracy and that their statements to police were relevant

conduct linking them to the murder of the Hendersons.-34-

Where the defendant objected to the determination of relevant

conduct at sentencing, we review the district court’s findings of

fact for clear error. U nited States v. Sneed

, 63 F.3d 381, 389

(5th Cir. 1995), cert. denied

,

___ U.S.

___, 116 S. Ct. 712, 133 L.

Ed. 2d 667 (1996). Richardson objected to the PSR’s findings at

sentencing; Brown, however, did not. At sentencing, the district

court specifically ruled that, although it would consider motions

by one defendant to be adopted by all, defendants could not rely on

their co-defendants’ object ions to the PSRs. Therefore, we will

review the district court’s findings of fact with respect to Brown

for plain error only. U nited States v. Vital

, 68 F.3d 114, 118-19

(5th Cir. 1995). Under Fed. R. Crim. P. 52(b), an error is plain

only when (1) there is an error, (2) the error is clear or obvious,

and (3) the error affects the substantial rights of the defendant.

United States v. Olano

, 507 U.S. 725 , 731-37, 113 S. Ct. 1770,

1776-79, 123 L. Ed. 2d 508 (1993); United States v. Calverley , 37

F.3d 160, 162-64 (5th Cir.) (en banc), cert. denied

,

___ U.S.

___,

115 S. Ct. 1266, 131 L. Ed. 2d 145 (1995). If these factors are

established, we have the discretion to correct the error if it

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Vital , 68 F.3d at 119.

Because we vacate the jury’s verdict with respect to Wilson’s

VICAR conviction for the shootings of the Henderson twins, the sole

basis for the district court’s determination th at Richardson andAlthough “[q]uestions of fact capable of resolution by the district

court upon proper objection at sentencing can never constitute plain error,”

United States v. Lopez

, 923 F.2d 47, 50 (5th Cir.), cert. denied

, 500 U.S. 924,

111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991), the distr ict court’s fact

determinatio ns depended on an erroneous legal conclusion, i .e.

, that the jury

verdict against Reginald Wils o n was constitutionally sound. Therefore, we

decline to apply the Lopez rule in this case.

-35- Brown lied to police, evaporates. The district court plainly erred

in resting its factual findings with respect to sentencing on a

verdict that we have subsequently found to be infirm, and we find

that Richardson’s and Brown’s substantial rights were prejudiced by

this error. 6 We therefore vacate both Richardson’s and Brown’s

sentences on count one and remand to the district court. The court

may either post pone sentencing subject to Reginald Wilson’s new

t rial, or make additional findings of fact, unrelated to the

shooting of the twins, regarding the VICAR conspiracy conviction of

count one.

C

Reginal d Wilson contends that one of the jurors was biased

against him because the juror was a friend of the Henderson twins,

who Wilson admits to having killed. After trial, counsel for

Wilson acquired affidavits from two people who claimed that juror

Ricky Lewis was a friend of Michael and Mitchell Henderson. During

voir dire

, the court read the potential jurors a list of names and

asked if the names were familiar; the names of the twins were not

on the list, and Lewis truthfully replied that none of the names

was familiar to him. Wilson claims that the court would have-36-

removed Lewis for cause had it learned that Lewis knew the twins,

or else Wilson would have exercised one of his peremptory strikes

against him. Wilson also claims that the court erred in failing to

order a hearing at which Wilson could have shown actual bias. S ee

Smith v. Phillips

, 455 U.S. 209, 215, 102 S. Ct. 940, 945, 71 L.

Ed. 2d 78 (1982) (“This Court has long held that the remedy for

allegations of juror partiality is a hearing in which the defendant

has the opportunity to prove actual bias.”); United St ates v.

Scott , 854 F.2d 697, 698 (5th Cir. 1988) (same). Wilson suggests

that the district court’s refusal to conduct a hearing denied him

his constitutional right to a fair trial.

Motions for new trial and decisions regarding jury bias are

traditionally within the discretion of the trial court. M cDonough

Power Equipment, Inc. v. Greenwood , 464 U.S. 548, 556, 104 S. Ct.

845, 850, 78 L. Ed. 2d 663 (1984) (plurality opinion). Therefore

we review the district court’s denial of the motion for new trial

for abuse of discretion. U nited States v. Buckhalter

, 986 F.2d

875, 879 (5th Cir.), cert. denied

, 510 U.S. 873, 114 S . Ct. 203,

126 L. Ed. 2d 160 (1993).

Generally, to obtain a new trial for jury bias, a party must

demonstrate (1) that a juror failed to answer honestly a material

question during voir dire

, and (2) that a correct response would

have provided the basis for a succes sful challenge for cause.

McDonough , 464 U.S. at 556, 104 S. Ct. at 850; Scott , 854 F.2d at-37-

698 (applying McDonough in the criminal context). We have applied

the plurality opinion in McDonough as binding prec edent in juror

bias cases in this circuit. M ontoya v. Scott

, 65 F.3d 405, 418

n.24 (5th Cir. 1995), cert. denied

,

___ U.S.

___, 116 S. Ct. 1417,

134 L. Ed. 2d 542; United States v. Ortiz , 942 F.2d 903, 909 (5th

Cir. 1991), cert. denied

, 504 U.S. 985, 112 S. Ct. 2966, 119 L. Ed.

2d 587. Unlike in M cDonough

, there is no evidence that Lewis lied

or actively concealed information during voir dire ; Wilson simply

failed to request that the court pose the relevant questions to the

venire. Therefore the traditional M cDonough fra mework is

inapplicable to this case. S ee United States v. Collins

, 972 F.2d

1385, 1403 (5th Cir. 1992) (refusing to apply McDonough test where

there was no allegation that juror concealed a material fact),

cert. d enied , 507 U.S. 1017, 113 S. Ct. 1812, 123 L. Ed. 2d 444

(1993); cf. McDonough

, 464 U.S. at 558 -59, 104 S. Ct. at 851

(Brennan, J. concurring) (noting that q uestion of juror bias is

quite independent of determination of whether potential juror lied

during voir dire ).

Wilson did not request that the district court ask whether any

of the potential jurors knew any of the victims, nor did he

otherwise object to the adequacy of voir dire

. “A disqualification

which by reasonable diligence could have been discovered before

verdict, may not afterwards be made the subject of an attack upon

a verdict.” S

pivey v. United States

, 109 F.2d 181, 186 (5th Cir.),-38-

cert. denied

, 310 U.S. 631, 60 S. Ct. 1079, 84 L. Ed. 1401 (1940);

see also Ford v. United States , 201 F.2d 300, 301 (5th Cir. 1953)

(“It is the right and duty of a defendant to discover on voir dire

examination

. . . whether a [venireperson] is subject to

disqualification for cause” and objection is “ordinarily waived by

failure to assert it until after verdict, even though the facts

which constitute the disqualification were not previously known to

the defendants”); Robinson v. Monsanto

, 758 F.2d 331, 335 (8th Cir.

1985) (finding that right to challenge juror is waived if basis for

objection might have been discovered during v oir dire had party

requested appropriate line of questioning). Wilson bears the

burden of proving that the belated discovery of Lewis’s friendship

with the victims wa s not due to lack of diligence on his part.

Un ited States v. Jones , 597 F.2d 485, 488 (5th Cir. 1979), c ert.

denied

, 444 U.S. 104 3, 100 S. Ct. 729, 62 L. Ed. 2d 728 (1980).

Wilson has not satisfied his burden. He simply asserts that Lewis

failed to honestly respond to questioning at voir dire without

specifying which question or questions he failed to properly

answer. Wilson does not address his own failure to request that

the court include Michael and Mitchell Henderson on the list of

names read to the jury.

S ince Wilson’s failure to uncover the new evidence of

potential bias stems from his own neglect, we will reverse the

district court’s denial of new trial only if Wilson can show that-39-

Lewis was actually biased agains t him. Ford , 201 U.S. at 301

(stating that failure to challenge juror until after verdict waives

the objection unl ess defendant shows actual prejudice or

fundamental incompetence); cf. United States v. Gray

, 105 F.3d 956,

962 (5th Cir. 1997), cert. denied , ___ U.S. ___, 117 S. Ct. 1326,

___ L. Ed. 2d

___ (1997) (applying plain error analysis where

defendants failed to object to manner in which court conducted voir

dire ); United States v. Brown

, 26 F.3d 1124, 1126-27 (D.C. Cir.

1994) (applying plain error analysis to claim of juror bias not

raised at trial); United States v. Uribe

, 890 F.2d 554, 560 n.4

(1st Ci r. 1989) (same). We presume that the jury was impartial,

and Wilson has the burden of proving otherwise by a preponderance

of the evidence. C ollins

, 972 F.2d at 1403; McDonough

, 464 U.S. at

558-59, 104 S. Ct. at 851 (Brennan, J. concurring).

Wilson seems to argue that we may imply b ias as a matter of

law from Lewis’s relationship with the victims. S ee Phillips

, 455

U.S. at 221-24, 102 S. Ct. at 948-49 (O’Connor, J. concurring)

(offering examples of situations where bias might be implied);

United States v. Wood

, 299 U.S. 123, 133, 57 S. Ct. 177, 179, 81 L.

Ed. 78 (1936) (noting that bias may be either actual or implied).

However, friendship with the victim of a defendant’s alleged crime

does not, standing alone, justify a finding of bias. C f. Montoya

,

65 F.3d at 420 (“Although such knowledge [of the victim] may be the

source of an existing bias, ‘the mere fact that a juror knows, or-40-

is a neighbor, or an intimate acquaintance of, and on friendly

relations with, one of the parties to a suit, is not sufficient

basis for disqualification.’”) (citations omitted); Howard v.

Davis

, 815 F.2d 1429, 1431 (11th Cir.) (holding that district court

did not abuse its discretion by refusing to excuse juror who had

been “close friend” of victim), cert. denied

, 484 U.S. 864, 108 S.

Ct. 184, 98 L. Ed. 2d 136 (1987); United States v. Freeman

, 514

F.2d 171, 173-74 (8th Cir. 1975) (finding no abuse of discretion in

failing to excuse juror who knew victim’s family). Wilson has not

demonstrated, on the basis of the affidavits alone, that Lewis was

actually biased against Wilson.

We furthermore reject Wilson’s contention that the district

court erred in denying his motion for new trial without conducting

an evidentiary hearing at which he could prove such bias. In his

motion for new trial, Wilson specifical ly advised the district

court that an evidentiary hearing was unnecessary. Wilson may not

claim error in the denial of a remedy that he explicitly

disclaimed. On the unusual facts of this case, we find no abuse of

discretion in the district court’s denial of Wilson’s motion for

new trial or for an evidentiary hearing.

VIII

DON WILSON

A

Don Wilson contends that counts two and three of the

indictment charged him twice for the same offense under the DoubleWilson argues that the jury must unanimously agree on which three

substantive offenses constitute the continuing series of drug violations and the

failure to so instruct the jury constitutes reversible error. We have never held

that such an instruction is required and do not address the question here since

Wilson failed to request a specific instruction or object to the charge given.

-41- Jeopardy Clause of the Fifth Amendment. Count two of the

i ndictment charged him with participation in a drug conspiracy

under 21 U.S.C. § 846, and count three charged him with engaging in

a continuing criminal enterprise (“CCE”) under 21 U.S.C. § 848.

The jury convicted Wilson on both counts. The Supreme Court

recently ruled that conspirac y under section 846 is a lesser

included offense of CCE under section 848, and that conviction

under both statutes constitutes unconstitutional double jeopardy.

Rutledge v. United States

,

___ U.S.

___, 116 S. Ct. 1241, 1247, 134

L. Ed. 2d 419 (1996). The government concedes that Wilson’s

section 846 conviction should be vacated on double je opardy

grounds. We therefore vacate Wilson’s conviction for drug

conspiracy in count two of the indictment.

B

Next, Don Wilson challenges his CCE conviction under 21 U.S.C.

§ 848. To show a CCE violation, the government must prove that

Wilson organized, supervised or managed five or more persons in a

continuing series of drug violations (at least three) from which he

obtained substantial income. Garrett v. United States

, 471 U.S.

773, 786, 105 S. Ct . 2407, 2415, 85 L. Ed. 2d 764 (1985). 7 The

five people involved in the CCE need not have acted in concert or-42-

at the same time. U nited States v. Phillips

, 664 F.2d 971, 1034

(5th Cir. Unit B 1981), cert. denied

, 457 U.S. 1136, 102 S. Ct.

2965, 73 L. Ed. 2d 1354 (1982). The defendant need not have been

the sole or dominant organizer or manager of the enterprise.

United States v. Tolliver , 61 F.3d 1189, 1215-16 (5th Cir, 1995),

vacated on other grounds

, Sterling v. U.S. , ___ U.S. ___, 116 S.

Ct. 900, 133 L. Ed. 2d 834 (1996). Nor need he have directly or

personally organized, supervised, or managed five people, U nited

States v. Hinojosa

, 958 F.2d 624, 630 (5th Cir. 1992), or even have

had personal contact which each underling. T olliver

, 61 F.3d at

1216. “Thus, the requisite associations and relationships may be

found even in loosely structured enterprises.” Id.

1

Wilson argues that the evidence was insufficient to prove that

he had a managerial or supervisory role in the drug trafficking

organization. In particular, he argues that although the evidence

establishes that he was a leader in the gang, it does not establish

that he directed the drug dealing activities of at least five

different people or that he did anything other than front drugs to

gang members. Wilson cites U nited States v. Witek

, 61 F.3d 819,

822, 824 (11th Cir. 1995), cert. denied , ___ U.S. ___, 116 S. Ct.

738, 133 L. Ed. 2d 688 (1996), for the proposition that a mere

buyer-seller relationship is insufficient to support a CCE

conviction.-43-

The government, however, cites to evidence in the record that

shows that Wilson occupied more than a mere buyer-seller

relationship with other members of the Bottoms Boys. Testimony at

trial indicates that Wilson was one of six “O.G.s,” and that, as a

leader of the gang, he controlled both the membership of the

organization and the identities of the sellers on the gang’s “turf”

who numbered far more than five. We agree that from this evidence,

a rational jury could reasonably infer that Wilson was an organizer

and manager of the drug-selling operation and all of its members.

2

Second, Wilson argues that the government failed to show that

he derived substantial income from the enterprise. In particular,

he argues that the go vernment must present evidence of specific

amounts earned from the conspiracy; it is not enough for the

government to offer generalized testimony that Wilson had “a lot”

of cars and that he was seen with “a lot” of money. We disagree.

The government need not specifically trace the source of income to

the drug trade or show specific amounts. In fact, the jury may

infer substantial income fr om outward evidence of wealth in the

absence of other, legitimate sources of income. United States v.

Chagra , 669 F.2d 241, 257 (5th Cir.), cert. denied , 459 U.S. 846,

103 S. Ct. 102, 74 L. Ed. 2d 92 (1982), overruled on other grounds

,

Garrett v. United States , 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed.

2d 764 (1985).-44-

The government presented evidence that Wilson owned

approximately eleven cars, including three or four Cadillacs, and

had a ready supply of drugs. However, Wilson had no legitimate

employment or other source of income. Furthermore, there was

testimony that Wilson earned thousands of dollars selli ng drugs

that he stashed in vacant houses. Therefore, viewing the evidence

in the light mo st favorable to the verdict, we find that the

evidence was sufficient to support a CCE conviction.

IX

ALFRED BROWN

A

Count twenty-three of the indictment charged Alfred Brown with

possessing cocaine base with intent to distribute, in violation of

21 U.S.C. § 841(a)(1), “[o]n or about February 9, 1992.” Count

twenty-four charged hi m with using and carrying a firearm during

and in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c )(1), also “[o]n or about February 9, 1992.” The

proof at trial, howe ver, demonstrated that the events supporting

the indictment occurred on July 9, 1992, the date on which Brown

was arrested for the substantive offense of possession of cocaine

with intent to distribute. Moreover, the evidence demonstrated

that the substance in Brown’s possession on that date was cocaine

hydrochloride, or powder cocaine, not cocaine base as alleged in

the indictment. Brown asserts that these variances are fatal to

his convictions on these counts.-45-

The district court correctly instructed the jury that, by

alleging that the offense occurred “on or about” February 9, 1992,

the government need only show that the crime was committed

reasonably near that date. P hillips

, 664 F.2d at 1036; United

States v. Grapp

, 653 F.2d 189, 195 (5th Cir. Unit A 1981). A fivemonth variance between the date alleged and the date proved is not

unreaso nable as a matter of law as long as the date proven falls

within the statute of limitations and before the return of the

indictment. P hillips

, 664 F.2d at 1036. S ee also United States v.

Harrell , 737 F.2d 971, 981 (11th Cir. 1984) (upholding conviction

where indictment alleged that offense occurred in February 1980 but

proof showed that offense occurred during the summer of 1980),

cert. denied

, 469 U.S. 1164, 105 S. Ct. 923, 83 L. Ed. 2d 935

(1985).

Moreover, a variance between allegations and proof is fatal

“only when it affects the substantial rights of the defendant by

failing to sufficiently notify him so that he can prepare his

defense and will not be surprised at trial.” Phillips , 664 F.2d

at 1036. Brown cannot demonstrate that he was surprised or

prejudiced in any way by the February 9, 1992, date in the

indictment. Brown knew that he was arrested on July 9 for

possession of cocaine with intent to distribute. In fact, it was

Brown’s attorney who brought the error in the indictment to the

attention of the prosecutor shortly after Bro wn’s arrest in-46-

September of 1994, several months before trial. Moreover, Brown

filed a motion to suppress evidence gathered on July 9, 1992, thus

demonstrating that he was aware of and was fully prepared to defend

against the government’s allegations with respect to Brown’s arrest

on July 9.

Furthermore, although the indictment incorrectly alleged that

the substance s eized from Brown was cocaine base (crack) rather

than cocaine hydrochloride, the particular form of the cocaine is

not an element of the offense under section 841(a)(1) and is thus

immaterial to a conviction. The jury need only have found that the

substance was some form of cocaine and thus a controlled substance.

United States v. Deisch

, 20 F.3d 139, 151 (5th Cir. 1994).

Moreover, for the same reasons stated above, Brown cannot

demonstrate that he was prejudiced in any way by the error in the

indictment.

B

Brown next argues that the jury could not have concluded from

the small amount of cocaine seized that Brown possessed the drugs

with intent to distribute. However, we agree with the government

that the evidence is sufficient to support the co nviction.

Witnesses testified that Brown purchased large amounts of cocaine

in Houston for distribution in the Bottoms, and investigators

observed numerous drug transactions involving Brown’s Cadillac

throughout the day on July 9, 1992. The fact that police seized-47-

only .1 grams of cocaine at the end of the day is not inconsistent

with possession with intent to distribute.

C

Next, Brown argues tha t the evidence is insufficient to

support the allegation in count twenty-four that he used a firearm

during and in relation to a drug trafficking crime. In Bailey v.

United States

,

___ U.S.___,___, 116 S. Ct. 501, 133 L. Ed. 2d 472

(1995), decided after Brown’s conviction, the Sup reme Court held

that section 924(c)(1) requires evidence sufficient to show active

employment of a firearm by the defendant, not mere possession or

intended use. I d

. at 505-09. B ailey applies retroactively to this

appeal. United States v. Rivas , 85 F.3d 193, 195 n.1 (5th Cir.),

cert. denied

,

___ U.S.

___, 117 S. Ct. 593, 136 L. Ed. 2d 521

(1996).

While we agree that the evidence is insufficient to prove that

Brown “used” a firearm, the indictment charged him with both using

and carrying firearms under section 924(c). The government need

not prove that Brown both used and carried the firearms seized; a

showing t hat he c arried a firearm during and in relation to his

drug trafficking crime would suffice. A “disjunctive statute may

be pleaded conjunctively and proved disjunctively.” U nited States

v. Dickey

, 102 F.3d 157, 164 n.8 (5th Cir. 1996) (citation

omitted). B ailey did not address the “carrying” requirement of the

statute; thus previous precedent with respect to that prong remains-48-

unaffected. Rivas , 85 F.3d at 195.

We have held that “the ‘carrying’ requirement of § 924(c) is

met ‘if the operator of the vehicle knowingly possesses the firearm

in the vehicle during and in relation to a drug trafficking

crime.’” I d

. (quoting United States v. Pineda-Ortuno

, 952 F.2d 98,

104 (5th Cir.), cert. denied

, 504 U.S. 928, 112 S. Ct. 1990, 118 L.

Ed. 2d 587 (1992)). At the time of Brown’s arrest for drug

possession, police found a firearm next to the driver’s seat of

Brown’s car and another in the trunk. The evidence was sufficient

for the jury to fi nd that Brown “carried” a firearm for the

purposes of section 924(c). See United States v. Brown , 102 F.3d

1390, 1401 (5th Cir. 1996) (finding evidence sufficient for

“carrying” prong where defendants had gun in van while transporting

drugs), cert. denied

,

___ U.S.

___, 117 S. Ct. 1455, ___ L. Ed. 2d

___ (1997); United States v. Fike

, 82 F.3d 1 315, 1328 (5th Cir.)

(finding evidence supported “carrying” where defendant had gun in

car within reach during drug transaction), cert. denied , ___ U.S.

___, 117 S. Ct. 241, 136 L. Ed. 2d 170 (1996).

The district court instructed the jury that it must find that

Brown “knowingly used or carried a firearm” and that the firearm

“was an integral part of the drug offense charged.” The court did

not otherwise define “use” or “carry” except to instruct that the

government need not prove that a defendant “actually fired the

weapon or brandished it at someone in order to prove use . . . .”It is possible, of course, under a different set of facts, to

conceive of a theory of passive “use” under the erroneous instruction that would

not support a conviction under the “carry” prong )) for example, where police find

a gun in close proximity to drugs in a bedroom closet, as they did in B ailey

. However, there was no evidence introduced against Brown in this case to support

such an improper conviction for “use.”

-49- We recognize that, after Bailey

, this is no longer a correct

statement of the law. B ailey

,

___ U.S. at

___, 116 S. Ct. at 507.

However, we note that this erroneous i nstruction is not

harmful per se . The jury did not specify whether it found Brown

guilty of use or carrying of the weapon in this case; however, we

have established that there is sufficient evidence to show that he

carried the weapon in his car. 8 Based on these facts, we infer

that the jury could not have improperly convicted Brown for a “use”

that would not also support a proper conviction for carrying a

weapon. We find that the erroneous instruction was harmless;

therefore automatic reversal in this case makes little sense.

We are nevertheless constrained by our own precedent to vacate

Brown’s conviction. In both B rown and Fike

, we held that a

defendant’s conviction must be vacated and remanded for a new trial

on the “carrying” prong alone where the district court instructed

the jury under the liberal, pre- Bailey definition of “use.” B rown

,

102 F.3d at 1401; Fike

, 82 F .3d at 1328. Brown and Fike are

factually indistinguishable from this case in all relevant respects

and are therefore binding; we have long insisted that one panel of

the court may not overrule another panel because it disagrees with

its holding. M ontesano v. Seafirst Commercial Corporation , 818-50-

F.2d 423, 425-26 (5th Cir. 1987). Therefore, barring e n banc

reconsideration of the issue or an intervening Supreme Court

decision, we must vacate Brown’s section 924(c) con viction and

remand the count for retrial on the carry prong alone.

D

At trial, the government called Jacqueline English, Br own’s

longtime companion, a s a witness. English denied having any

knowledge of Brown’s alleged drug sales or his purchasing trips to

Houston and denied that she had ever discussed such matters during

an interview with FBI agent Dan McMullen in September 1994. After

English stepped down, the government called Agent McMullen to the

stand but promptly released him without questioning.

In his closing, Brown’s attorney argued that the only logical

conclusion that the jury could draw from Agent McMullen’s failure

to testify was that McMullen’s testimony would not have helped the

government’s case. During rebuttal, the government responded to

these allegations by stating, over counsel’s objection:

The rules of evidence do not allow the Government to call

the agent to impeach her. I called him and then I

r ealized I could not by the rules of evidence. I am

prohibited by the rules of evidence from doing that. So

that’s wh y we call [sic] him back. It’s a rule of

evidence, it’s a legal rule of evidence that kept Agent

McMullen off the stand.

Brown argues that the prosecutor’s statements impermissibly

suggested to the jury that otherwise inadmissible evidence existed

that would rebut English’s testimony.-51-

We have previously held that the government may not seek to

impeach a witness with evidence not in the record by suggesting

that, but for the rules of evide nce, such proof would have been

presented at trial. U nited States v. Vaglica

, 720 F.2d 388, 394-95

(5th Cir. 1983) (finding error in permitting prosecutor to argue

that, but for rules of evidence, government would have been able to

rebut defendant’s testim ony); U nited States v. Morris

, 568 F.2d

396, 401 (5th Cir. 1978) (“This Court has repeatedly held

. . .

that an attorney may not say anything to the jury implying that

evidence supporting the attorney's position exists but has not been

introduced in the trial.”). Such comments may constitute error

even if merely responsive to comments by defense counsel. United

States v. Diaz , 662 F.2d 713, 717 (11th Cir. 1981).

However, even assuming arguendo that the prosecutor’s

statements were improper, the error was harmless. S ee Morris

, 568

F.2d at 402 (holding that prosecutor’s statements “must be regarded

as harmless if, upon examination of the entire record, substantial

prejudice to the defendant does not appear”); United States v.

Diaz-Carreon

, 915 F.2d 951, 956 (5th Cir . 1990) (“Improper

p rosecutorial comments require reversal only if the comments

substantially affected the defendant's right to a fair trial.”).

The record is replete with evidence of Brown’s involvement in the

conspiracy as its major drug supplier. English did not testify

that any of the evidence against Brown was false or that Brown was-52-

actually innocent; she simply denied having any knowledge of his

drug trafficking activity. Her impeachment, even by impermissible

means, was immaterial to Brown’s conviction. We therefore find

that the prosecutor’s comments at closing wer e harmless. S ee

United States v. Lester

, 749 F.2d 1288, 1302 (9th Cir. 1984)

(finding similar error harmless in light of overwhelming evidence

of guilt); cf. Vaglica , 720 F.2d at 395 (finding reversible error

where prosecutor implied that, but for rules of evidence, it could

rebut primary evidence supporting defense).

X

SEBASTIAN RICHARDSON

A

Sebastian Richardson argues that the district court erred in

denying his motion for new trial on the drug distribution charge in

count twenty-two. The decision to grant or deny a motion for new

trial based on the weight of the evidence is within the sound

discretion of the trial court. An appellate court may reverse only

if it finds the decision to be a “clear abuse of discretion.”

United States v. Dula

, 989 F.2d 772, 778 (5th Cir.), cert. denied

,

510 U.S. 859, 114 S. Ct. 172, 126 L. Ed. 2d 131 (1993). The court

may not reweigh the evidence and set aside the verdict simply

because it feels some other result would be more reasonable.

United States v. Robertson

, 110 F.3d 1113, 1118 (5th Cir. 1997).

Rather, the evidence must weigh heavily against the verdict, such

that it would be a miscarriage of justice to let the verdict stand.-53-

Id.

Richardson argues that the weight of the evidence shows that

the government informant, Mary Gladney, mistook Roderick Allen for

Richardson during a drug purchase and that Deputy Carl Townley

misidentified Richardson’s voice on the tape of that transaction.

Specifically, Richardso n points to testimony by Gladney that the

person from whom she purchased the drugs was bald, although

Richardson was not bald on the day in question, and testimony that

Allen, who was bald, sometimes answered to Richardson’s nickname

“Bam Bam.”

We find that this is an isolated inconsistency in tes timony

that the jury could reasonably find did not call into question

other inculpatory evidence. Both witnesses were subjected to

extensive cross-examination concerning the identification of

Richardson. Townley testified that he had known Richardson for

years and could recognize his voice. Although Gladney testified

that the seller was bald, her testimony indicated that she had not

been concentrating on his appearance at the time. The jury could

easily have concluded beyond a re asonable doubt that the seller

responding to the name “Bam Bam” was Richardson. Where the defense

had ample opportunity to attack the reliability of a witness at

trial, but the jury chose to credit that testimony anyway, the

district court did not abuse its discretion in denying the motion

for new trial. Dula , 989 F.2d at 778.-54- B

At trial, former gang member Rashaun Kimble testified that he,

Richardson, and Richard Pea (a.k.a. “Posse”) participated in a

“walk-by” shooting. The government cited the testimony as evidence

of Richardson’s involvement in the VICAR conspiracy. During trial,

a defense investigator interviewed Pea, who stated that he had

never been involved in such a shooting with Kimble and Richardson.

After trial, Pea signed an affidavit swearing that Kimble had tried

to persuade Pea to lie about his involvement because Kimble “was

pressed to come up with the name of a third party to make the story

believable.” Richardson contends that the district court should

have granted his motion for a new t rial based on this newly

discovered evidence.

To receive a new trial under Fed. R. Crim. P. 33 Richardson

must prove that: “(1) the evidence is newly discovered and was

unknown to the defendant at the t ime of trial; (2) failure to

detect the evidence was not due to a lack of diligence by the

defendant; (3) the evidence is not merely cumulative or impeaching;

(4) the evidence is material; and (5) the evidence introduced at a

new trial would probably produce an acquittal.” United States v.

Jaramillo

, 42 F.3d 920, 924 (5th Cir. 1995), cert. denied

,

___ U.S.

___, 115 S. Ct. 2014, 131 L. Ed. 2d 1013 (1995). The motion must

be denied if all elements of the test are not satisfied. I d

. at

924-25. The evidence at issue here is not “newly discovered” since-55-

Pea stated in the affidavit that he offered this information to the

defense investigator at the time of the i nitial interview during

the trial. The fact that defense counsel did not adequately

communicate with persons investigating on its behalf does not mean

the information could not have been detected through re asonable

diligence. Even if Pea did not give this specific information to

the investigator, counsel was aware of inconsistencies between

Pea’s and Kimble’s accounts but chose not to call Pea to testify.

See United Stat es v. Time , 21 F.3d 635, 642 (5th Cir. 1994)

(finding that no new trial was warranted when defendant had reason

to believe that witness possessed information but failed to crossexamine him at trial).

At any rate, it is highly unlikely t hat a new trial would

produce an acquittal given the wealth of evidence of Richardson’s

violent acts and his status as a “reaper” and “enf orcer” in the

gang. The district court did not abuse its discretion in denying

Richardson’s motion for new trial.

XI

ALONZO BATES

Alonzo Bates a rgues that the government failed to show

conspiracy-related activity after Bates reached the age of majority

on May 6, 1994. Bates apparently challenges this court’s

jurisdiction under the Juvenile Delinquency Act (“JDA”), 18 U.S.C.

§ 5031 et seq. Interpretation of the JDA is a question of law,

which we review de novo

. Under the JDA, the Attorney General must-56-

certify that “there is a substantial Federal interest in the case

or the offense to warrant the exercise of Federal jurisdiction,”

and that on e of three factors is satisfied before proceeding

against any juvenile in federal court. 18 U.S.C. § 5032; T olliver

,

61 F.3d 1189, 1199. The JDA requirement is jurisdictional;

therefore federal courts may not pr osecute juveniles without

certification. Tolliver , 61 F.3d at 1199.

Bates, however, is not a juvenile, and he is not being tried

for acts completed before he turned eighteen. Although the crime

of conspiracy is “complete” at the moment the deal is struck, it is

a continuing crime that may ext end from before a defendant’s

eighteenth birthday into his adult life. Id . at 1200. A federal

court may try a defendant who has turned eighteen for a conspiracy

that began before h is eighteenth birthday if the government can

show that the defendant ratified his involvement in the conspiracy

after reaching majority. Id

.

The jury convicted Bates of selling dru gs to an undercover

polic e officer August 26, 1994, several months after Bates’s

eighteenth birthday. The jury therefore could properly consider

evidence of conspiracy activity before Bates reached the age of

majority and convict him under count two of the drug conspiracy.

Tolliver

, 61 F.3d at 1200. To the extent Bates challenges the

sufficiency of the evidence to support the August 26 drug charge,

we find that a rational jury could have found him guilty on theU.S.S.G. § 3B1.1(a) states: “If the de fendant was an organizer or

leader of a criminal act ivity that involved five or more participants or was

otherwise extensive, increase by 4 levels.”

-57- evidence presented at trial.

XII

SENTENCING CHALLENGES

Defendants raise various challenges to the application of the

sentencing guidelines. We review the district court’s application

of the Sentencing Gui delines d e novo

, and review the district

court’s factual findings for clear error, giving deference to the

district court ’s application of the guidelines to the facts.

United States v. West , 58 F.3d 133, 137 (5th Cir. 1995).

A

Richardson argues that the district court misapplied U.S.S.G.

§ § 3B1.1(a) by applying a four-level increase to the offense

levels of both the VICAR group of offenses and the drug group of

offenses. 9 Richardson cites United States v. Kleinebreil for the

proposition that this increase constitutes impermissible “double

counting.” 966 F.2d 945, 955 (5th Cir. 1992).

Kleinebreil is inapposite. In that case, the defendant

received a three-level increase to the offense level of his drug

convictions based on his supervisory role in the drug conspiracy.

Kleinebreil, however, also received a three-level increase to the

offense level of his assault group of convictions, even though he

was the only participant in th e assault. The court held that-58-

because the section 3B1.1 enh ancement must be anchored in the

transaction leading to the conviction, the characteristics of one

group of offenses could not be used to enhance the offense level of

an unrelated group of offenses. Id . at 955.

Here, however, the government presented evidence that

Richardson, along with Don Wilson and Alfred Brown, were leaders in

both the VICAR conspi racy and the drug conspiracy, two distinct

conspiracies to violate distinct criminal laws. The district

court’s fact findi ngs were not clearly erroneous; the court

properly applied the enhancement provis ion to both groups of

offenses.

B

Alonzo Bates, Donald Miller, and Roderick Allen challenge the

court’s two-level enhancement for use of a firearm during drug

trafficking activities under U.S.S.G. § § 2D1.1(b)(1) on the ground

that the government did not adequately demonstrate that their

possession of firearms was related to their sal e of drugs. In

addition, Bates asserts that application of the enhancement to him

was unwarranted since the government did not seek this enhancement

against all the other defendants. These arguments are completely

witho ut merit. Although a conviction on a substantive count

requires proof beyond a reasonable doubt, the district court may

sentence a defendant within the Sente ncing Guidelines on any

relevant ev idence that “has sufficient indicia of reliability to-59-

support its probable accuracy.” U.S.S.G. § 1B1.3; U nited States v.

Buchanan

, 70 F.3d 818, 828 (5th Cir. 1995), cert. denied

,

___ U.S.

___, 116 S. Ct. 1340, 134 L. Ed. 2 d 490 (1996); U nited States v.

Edwards

, 65 F.3d 4 30, 432 (5th Cir. 1995). C f. United States v.

Watts , ___ U.S. ___, ___, 117 S. Ct. 633, 635, 136 L. Ed. 2d 554

(1997) (noting that Guidelines Manual section 1B1.3 charges

sentencing court to consider “entire range of conduct” in

sentencing defendant). The district court heard testimony during

the sentencing hearing that Bates, Miller, and Allen carried guns

and that guns were used by Bottoms Boys in relation to the drug

trade. We find that this evidence has sufficient reliability for

use by the district court in enhancing the sentences of the gang

members.

Furthermore, even assuming that Bates’s propensity to tote

guns placed him on a par with other defendants, there is no

requirement of parity in the sentencing enhancements of similarly

situated defendants. The decision of whether to enhance a sentence

is properly within the discretion of the district court judge.

Koon v. United States , ___ U.S. ___, ___, 116 S. Ct. 2035, 135 L.

Ed. 2d 392 (1996) (citing 18 U.S.C. § 3742). Finding no abuse of

that discretion, we will not disturb the enhancement.

XIII

Appellants raise numerous other issues that do not merit

discussion in this opinion. Specifically, Alonzo Bates challenges-60-

the trial court’s finding that the government articulated raceneutral explanations for its peremptory strikes of certain AfricanAmerican veniremen; Patrick Miller challenges the court’s decision

to allow the government to reopen its case before the close of

trial to correct an evidentiary error; Reginald Wilson charges

prosecutorial misconduct due to puffing in the government’s opening

statement; Roderick Allen challenges the specificity of the dates

in the indictment and the court’s refusal to decrease his offense

level as a mino r or minimal participant; Troy Bellamy challenges

the con s titutionality of the disparate penalty provisions for

cocaine base (crack) versus cocaine powder; an d Sebastian

Richard son argues that ambiguity in the scope of the VICAR

conspiracy alleged in the indictment prejudiced his ability to

prepare a defense. After a careful review of the briefs and the

evidence in the record, we find that these arguments are without

merit under the established law of this circuit and affirm the

district court without further discussion.

XIV

Therefore we VACATE Donald Wilson’s conviction on count two;

VACATE Reginald Wilson’s convictions on counts nine and ten and

Alfred Brown’s conviction on count twenty-four and REMAND for new

trial; VACATE Sebastian Richardson’s and Alfred Brown’s sentences

on count one and REMAND for resentencing; REMAND the B rady

challenge regarding the interview notes for further proceedings in-61-

accordance with this opinion; and AFFIRM all other convictions in

all respects.