*Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60308

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CLAUDE MORMON; REGINALD E. GREEN; HORACE LEE

LEE COLONEL; RALPH GREEN also known as Chuck Green,

Defendants-Appellants.

Appeal from the United States District Court

For the Northern District of Mississippi

(1:94-CR-001)

December 31, 1996

Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*

Appellants/Defendants Claude Mormon, Reginald E. Green, Horace

Lee Colonel, and Ralph Green, also known as Chuck Green, were

convicted by a jury of conspiracy to distribute and to possess with
2

intent to distribute in excess of 50 grams of cocaine base between

March 1992 and November 1993, in violation of 21 U.S.C. §§ 841 and

846. Reginald Green was also convicted of unlawfully engaging in

a continuing criminal enterprise during the same period, in

violation of 21 U.S.C. § 848. 

Claude Mormon was sentenced to 339 months imprisonment

followed by five years of supervised release. He was fined $1,000

and charged an assessment of $50. Reginald E. Green was sentenced

to 384 months imprisonment followed by five years of supervised

release. He was fined $50,000 and charged an assessment of $50.

Horace Lee Colonel was sentenced to 240 months imprisonment

followed by five years of supervised release. He was fined $1,500

and charged an assessment of $100. Ralph Green was sentenced to

292 months imprisonment followed by five years of supervised

release. He was fined $1,000 and charged an assessment of $50. On

appeal, Appellants raise multiple points of error. For the

following reasons, the convictions and sentences of Appellants are

affirmed.

BACKGROUND

Reginald Green ran a narcotics distribution operation based in

San Antonio, Texas. Green’s brother, Ralph Green, a/k/a Chuck

Green, worked in Reginald’s liquor store in San Antonio and

assisted Reginald by distributing crack cocaine (“crack”) and
3

accepting drug proceeds for Reginald. Horace Colonel distributed

crack supplied by the Greens in Florida and North Carolina through

street dealers who worked for him. Claude Mormon was employed by

Colonel and other co-conspirators to transport supplies of crack

from Texas to Florida and other locations. 

Reginald Green ran this operation from March 1992 to November

1993. In short, Reginald would “front” crack cocaine to various

individuals and those individuals would distribute the drug and

return the profits to Reginald. Reginald would then resupply these

distributors with more crack and await the profits. This cycle

continued and eventually led to a pyramid of employees, all of whom

worked for Reginald or one of the other named Appellants.

Eventually, some of the lower-level distributors were arrested

and charged with federal drug and firearms violations. Individuals

such as Demarco Morgan, Sam Hall, Raymond Rowe, and Raymond Kinsey,

pleaded guilty to these charges and agreed to cooperate with law

enforcement authorities with regard to apprehending the Appellants.

Ultimately, search warrants were issued and Appellants were

arrested. 

On January 28, 1994, a federal grand jury in the Northern

District of Mississippi returned an eight count indictment against

Reginald Green, Ralph Green, Horace Colonel, and Claude Mormon. 

Count One charged all four Defendants with conspiracy to distribute

and to possess with intent to distribute in excess of 50 grams of

cocaine base between March 1992 and November 1993, in violation of
1 The appellate brief of each Defendant expressly adopts by

reference the arguments presented in the briefs of his codefendants. Rule 28(i) of the Federal Rules of Appellate Procedure

provides for such adoption by reference in cases involving multiple

appellants. We have previously held, however, that an appellant

may not raise fact specific challenges to his own conviction or

sentence -- such as sufficiency-of-the-evidence challenges or

challenges to the application of the sentencing guidelines -- by

4

21 U.S.C. §§ 841 and 846. Count Two charged Reginald Green with

unlawfully engaging in a continuing criminal enterprise during the

same period, in violation of 21 U.S.C. § 848. Counts Three, Four,

Five, Seven, and Eight charged Ralph Green with use of a telephone

to facilitate a conspiracy to distribute cocaine base, in violation

of 21 U.S.C. § 843. Count Six charged Reginald Green with use of

a telephone to facilitate a conspiracy to distribute cocaine base,

in violation of 21 U.S.C. § 843. 

Trial by jury began on March 6, 1995. At trial, government

witnesses, including Morgan, Hall, Kinsey, and Rowe, each testified

about their own participation in the conspiracy, as well as that of

the Defendants. Upon the close of the government’s case-in-chief,

the district court granted Defendants’ motions to dismiss Counts

Three through Eight. The jury returned verdicts of guilty as to

all Defendants on Count One, and as to Reginald Green on Count Two.

Defendants now appeal.

DISCUSSION

Appellants raise several points of error. We will address

each point of error in turn.1
merely referring to similar challenges in another appellant’s

brief. United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir.

1996), citing, United States v. Harris, 932 F.2d 1529, 1533 (5th

Cir.), cert denied, 112 S. Ct. 270, and cert denied, 112 S. Ct. 324

(1991), and cert denied, 112 S. Ct. 914 (1992). Accordingly, to

the extent that the issues raised by each Defendant have been

properly adopted by the other Defendants, our holding as to each

issue may be deemed to be our holding as to all Defendants. Alix,

86 F.3d at 434 n.2. 

2 Rule 801(d)(2)(E) of the Federal Rules of Evidence states that

a “statement is not hearsay if ... [t]he statement is offered

against a party and is ... a statement by a coconspirator of a

party during the course and in furtherance of the conspiracy.”

FED. R. EVID. 801(d)(2)(E).

5

1. Admission of Recorded Telephone Conversations

Defendants argue that the district court erred when it

admitted into evidence certain post-arrest taped telephone

conversations between Ralph Green, Reginald Green, and government

witness Demarco Morgan. In these conversations, the parties

discuss, inter alia: their likely sentences, their need to use

“safe phones” or alternative communication methods to avoid

government monitoring, and whether certain Defendants are “talking”

to the government. Defendants argue that such statements are

inadmissible hearsay because they do not constitute statements of

a co-conspirator during the course and in furtherance of the

conspiracy.2 

For a statement to be admissible under this rule, "[t]here

must be evidence that there was a conspiracy involving the
6

declarant and the nonoffering party, and that the statement was

made during the course and in furtherance of the conspiracy."

United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992)

(internal citations omitted) (citing, Bourjaily v. United States,

107 S. Ct. 2775, 2778 (1987)). Whether statements are admissible

under this rule is a preliminary question that shall be determined

by the court. FED. R. EVID. 104(a); Fragoso, 978 F.2d at 899.

“When preliminary facts to admissibility of coconspirator testimony

under Rule 801(d)(2)(E) are disputed, the offering party must prove

them by a preponderance of the evidence.” Fragoso, 978 F.2d at

899. Thus, the Government must establish by a preponderance of the

evidence that the declarant and the defendant were involved in a

conspiracy and that the statements were made during and in

furtherance of the conspiracy. Bourjaily v. United States, 107 S.

Ct. 2775, 2778-709 (1987). “[W]e accept all credibility choices

that support the jury's verdict, letting jurors use their common

sense and apply common knowledge, observation, and experience

gained in the ordinary affairs of life when giving effect to the

inferences that may reasonably be drawn from the evidence....”

United States v. Steen, 55 F.3d 1022, 1031 (5th Cir.), cert.

denied, 116 S. Ct. 577 (1995) (internal citations omitted). 

“[T]he failure to explicitly discuss drugs or drug-trafficking

does not automatically indicate that the conversations were not in

furtherance of the conspiracy. United States v. Broussard, 80 F.3d
7

1025, 1039 (5th Cir.), cert. denied, 117 S. Ct. 264 (1996).

“Indeed, ‘in furtherance of a conspiracy’ is not to be construed

too strictly lest the purpose of the exception be defeated.” Id.

“We have shunned an overly literal interpretation of this

[phrase]." Id. (internal citations omitted).

 “Given that concealment is often a necessary part of a

conspiracy, statements made to aid the concealment are made in

furtherance of the conspiracy.” Id. A statement emphasizing the

need to use ‘safe’ phones “clearly indicates” a desire that the

conspiracy be kept concealed. Id. The alleged hearsay statements

may be considered in making the Rule 801(d)(2)(E) determination.

Id. at 2781.

Over the objections of Appellants, the district court

conditionally admitted the taped telephone conversations. At the

close of the government's case-in-chief, the district court

determined that the government had satisfied its threshold burden

of demonstrating, by a preponderance of the evidence, that a

conspiracy existed.

We must interpret the evidence supporting the district court’s

determination in the light most favorable to the government.

United States v. Villareall, 764 F.2d 1048, 1050 (5th Cir.), cert.

denied, 106 S. Ct. 272 (1985). After granting such deference and

after thoroughly reviewing the record, including the record

citations made by both the government and the Appellants, we hold
3 This Court appreciates the candidness of Mormon’s counsel in

appropriately acknowledging unfavorable precedent.

4 In 1994, Congress directed the Sentencing Commission to

examine the federal sentencing scheme and to provide

recommendations for retention or modification of the policy. The

Sentencing Commission's report, transmitted to Congress on February

28, 1995, concludes that the 100 to one ratio is too great, and

8

that the independent evidence offered by the government supports

the trial court's determinations. Accordingly, out-of-court

statements made by Ralph Green, Reginald Green, and Demarco Morgan

were properly admitted into evidence.

2. Constitutionality of Sentencing Guidelines

Acknowledging that this Court has rejected similar arguments

in the past,3 Appellants, nevertheless, argue that their respective

sentences violate their equal protection and due process rights,

and constitute cruel and unusual punishment in violation of the

Eighth Amendment to the Constitution. Specifically, Appellants

argue that the Sentencing Guidelines unconstitutionally utilize a

100-1 sentencing ratio for those convicted of crimes involving

crack cocaine versus powder cocaine. Appellants argue that the

penalty scheme of U.S.S.G. § 2D1.1 disproportionately burdens

African-Americans and that Congress enacted the scheme with the

intent to discriminate on the basis of race. In support of their

position, Appellants cite a recommendation by the United States

Sentencing Commission to reduce or eliminate the sentencing

disparity between cocaine and crack.4 While Appellants acknowledge
that the penalty scheme should be amended. The Commission took

into account the "inescapable conclusion" that African-Americans

comprise the largest percentage of those affected by the penalties

associated with crack cocaine, and stated that, in the months

ahead, it planned to refine the drug guidelines to account for the

harms related to cocaine without the "difficulties associated with

an automatic 100-to-1 ratio". U.S. Sentencing Commission, SPECIAL

REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY at xi, xv

(1995). United States v. Cherry, 50 F.3d 338, 344 n.21 (5th Cir.

1995).

9

that this recommendation was ultimately rejected by Congress, Pub.

Law 104-38, they argue that Congress’ failure to adopt the

Commission’s recommendations evinces Congress’ intent to

discriminate against African-Americans.

We review the district court's legal conclusions de novo, and

will uphold the district court's factual finding if it is supported

by substantial evidence. United States v. Cherry, 50 F.3d 338, 342

(5th Cir. 1995).

In Cherry, we noted that crack cocaine is a different drug

from powder cocaine, and that Congress need not treat dissimilar

drugs similarly. Cherry, 50 F.3d 338 at 344 (noting, inter alia,

that crack cocaine is more addictive). We also held that Congress’

choice to create disparate sentences for crack cocaine and powder

cocaine, 

is rationally related to Congress's legitimate

interest in protecting the general welfare. The

100 to one ratio is extreme, but it is not the

province of this Court to second-guess Congress's

chosen penalty. That is a discretionary

legislative judgment for Congress and the
10

Sentencing Commission to make. Our review is

limited to whether the penalty has a rational

basis. We conclude that it does....

Cherry, 50 F.3d at 344. Accordingly, we find Defendants’ arguments

unpersuasive. No error was committed.

3. Failure to Strike Jurors 19 and 31.

Appellants argue that the district court erred when it failed

to strike Jurors No. 19 and 31 for cause. Appellants contend that

this error violated their Constitutional rights to due process and

trial by an impartial jury. After reviewing the transcript of the

proceedings, we find no error.

During voir dire, counsel for Reginald Green asked a series of

questions concerning any potential biases which the potential

jurors might have concerning the drug-related nature of the case

and the race of the Defendants. Among the questions asked by

counsel were: “Do any of you all right now have a perception that

because this is a drug offense that is being charged and because

the defendants are African American that might insinuate guilt more

so than if they were of another race?” and “So would anyone think

that any of the four defendants would be more likely to be guilty

of the charged offense because they are African Americans?” In

response to these questions and others, Juror 19 stood and engaged

counsel in the following dialogue:

JUROR 19: How did you determine that they are

African American:
11

COUNSEL: Sir?

JUROR 19: How did you determine that?

COUNSEL: The defendants?

JUROR 19: I am trying to make a point here. You

have them stand up and we looked at them and you

said African American. How did you determine that

they are African American?

COUNSEL: Let me think of a nice way to respond. I

am familiar, of course, with Reginald Green because

he is my client, so I know he is African American.

JUROR 19: How do you know?

COUNSEL: And his brother is Chuck Green, so I know

he is African American.

JUROR 19: How do you know?

COUNSEL: I talked to the attorneys for Will Ford -

- for Claude Mormon and Horace Colonel and I know

that they know that their clients are African

American, so I know that is something in [sic] true

in this case.

JUROR 19: But that is pedigree, there is no way of

proof.

COUNSEL: Thank you, sir, for your comment.

JUROR 19: My point is, we are just going by the way

they look, right?

COUNSEL: Yes, sir.

JUROR 19: So they are American.

COUNSEL: I am going -- Sir, I don’t want to argue

with you, but I do want to say that I appreciate

your comment. Thank you very much.

Based upon this exchange, counsel for Defendant Mormon sought to

have Juror 19 excused for cause, arguing that the dialogue was
5 The transcript shows that Reginald Green’s counsel did not

directly ask Juror 19 if he would be prejudiced by Defendants’

race. However, on voir dire, the jury pool was collectively asked,

on several occasions, if any member maintained any prejudice

against Defendants on the basis of their race. No potential juror,

including Juror 19, responded in the affirmative.

12

“bizarre” and that Juror 19 was “hostile with regard to race.”

Determining that Juror 19's responses and demeanor did not indicate

bias or prejudice, the district court held: 

[H]e obviously has a different perception or

conception of the term African American than the

way it was being asked about by [Counsel], but that

in itself does not show he is a racist or has

racial prejudice. When he responded to all of your

questions about whether he would be prejudiced in

any way because of race, he said no, so that

challenge will be denied.5

“Voir dire examination serves the dual purposes of enabling the

court to select an impartial jury and assisting counsel in

exercising peremptory challenges.” Mu’min v. Virginia, 111 S. Ct.

1899, 1908 (1991). “Because the obligation to empanel an impartial

jury lies in the first instance with the trial judge, and because

he must rely largely on his immediate perceptions, federal judges

have been accorded ample discretion in determining how best to

conduct the voir dire.” Id. at 1904. “Despite its importance, the

adequacy of voir dire is not easily subject to appellate review.”

Id. “The trial judge's function at this point in the trial is not

unlike that of the jurors later on in the trial. Both must reach

conclusions as to impartiality and credibility by relying on their

own evaluations of demeanor evidence and of responses to
13

questions.” Id. at 1904. Ultimately, the trial court must

determine whether the juror is to be believed when he says that he

has not formed an opinion about the case. Id. at 1905. 

We review a district court’s ruling as to juror impartiality

for abuse of discretion. United States v. Mendoza-Burciaga, 981

F.2d 192, 197-198 (5th Cir. 1992), cert. denied, 114 S. Ct. 356

(1993). In this case, the district court determined that Juror 19

did not possess a prejudice which would cause him to form an

opinion about the case. The district court based its decision not

only upon the content of the exchange between Juror 19 and counsel,

but also upon Juror 19's demeanor, manner, and tone. After

reviewing the record, we find no basis upon which we can conclude

that the district court committed error as to Juror 19. 

In the alternative, we hold that any error was harmless.

Defendants exercised one of their preemptory challenges to remove

Juror 19. Accordingly, Juror 19 did not serve on the jury.

Nevertheless, Defendants argue that the district court’s alleged

error in not striking Juror 19 for cause resulted in Defendants

needing to use one of their preemptory challenges to strike Juror

19, thereby effectively reducing by one the number of challenges

available to Defendants. For the following reasons, Defendants’

argument fails. 

The standard by which we determine the impact of an increase

or decrease in the number of a party's peremptory challenges as a
14

result of a court's erroneous ruling on a challenge for cause is

set forth in United States v. Prati, 861 F.2d 82, 87 (5th Cir.

1988). Citing the Supreme Court decision in Ross v. Oklahoma, 108

S. Ct. 2273 (1988), we made clear that the pertinent inquiry is

whether the jurors who actually sat were impartial as required by

the Sixth Amendment. Prati, 861 F.2d at 87. We rejected the

notion that the loss of a peremptory challenge constitutes a

violation of a constitutional right to an impartial jury. Although

peremptory challenges are a means to an end of achieving an

impartial jury, peremptory challenges are not of constitutional

dimension. Therefore, although the alleged improper removal of the

venire member may have altered the ultimate composition of the

panel, this is not a ground upon which the defendants’ convictions

can be reversed. Prati, 861 F.2d at 87. 

Next, Defendants argue that the district court abused its

discretion by refusing to strike Juror No. 31 for cause. Juror No.

31 stated that she had an uncle in law enforcement. When counsel

for Reginald Green asked Juror 31 if that relationship would effect

her ability to be “a fair and impartial juror,” Juror 31 responded,

“No ma’am.” Defendants offer no evidence to show that Juror 31

would be a partial or biased juror. In essence, Defendants invite

this Court to hold that relatives of law enforcement officials are,

per se, incapable of making fair determinations. We decline

Defendants’ invitation. Based upon the record before us, we hold
15

that Defendants have not shown that the district court abused its

discretion by refusing to strike Juror 31 for cause. 

4. Double Jeopardy

On February 3, 1994, two vehicles owned by Reginald Green were

seized by the government pursuant to a search warrant executed at

Reginald Green’s residence. On April 15, 1994, both vehicles were

administratively forfeited to the government subsequent to a

summary forfeiture proceeding. A lis pendens was filed with the

deed records of Bexar County, San Antonio, Texas, attaching both

the residence of Reginald Green, as well as, a piece of rental

property which he owned. The lis pendens prohibits the sale or

transfer of these properties pending the outcome of Reginald

Greens’ appeal before this Court. 

Reginald Green moved the district court to dismiss the

criminal charges against him on the grounds that the summary

forfeiture of his vehicles, as well as the pending forfeiture of

his real property, constitutes punishment for his crime. Reginald

Green argues that the sentence which he received for his criminal

conviction constitutes additional punishment in violation of the

double jeopardy clause of the Fifth and Eighth Amendments to the

Constitution. We disagree.
16

The double jeopardy clause of the Fifth Amendment to the

Constitution states that "[n]o person shall...be subject for the

same offense to be twice put in jeopardy of life or limb...." U.S.

CONST. AMEND. V. Because double jeopardy raises a legal issue of

constitutional dimensions, we review de novo the denial of a motion

to dismiss on double jeopardy grounds. United States v. ArreolaRamos, 60 F.3d 188, 191 (5th Cir. 1995). The Supreme Court has

interpreted the Double Jeopardy Clause to shield citizens from both

multiple prosecutions and multiple punishments for the same

offense. Id. at 191-192. Thus, only when a civil forfeiture

constitutes "punishment" can jeopardy attach. Id. at 192. In

Arreola-Ramos, we held that, 

a summary forfeiture, by definition, can never

serve as a jeopardy component of a double jeopardy

motion. In summary forfeiture proceedings, there

is no trial, there are no parties, and no one is

punished. Absent a trial, a party, and a

punishment, jeopardy can never attach. As Arreola

did not appear and contest the forfeiture, he was

never in jeopardy. Without former jeopardy, double

jeopardy cannot arise. We agree with the district

court: As Arreola failed to establish former

jeopardy, he necessarily failed to establish even

the possibility of double jeopardy.

Arreola-Ramos, 60 F.3d at 192-193. See also, United States v.

Morgan, 84 F.3d 765, 767 (5th Cir. 1996) (“When a defendant fails

to judicially contest a civil forfeiture action by filing a

‘claim’, the defendant is not subject to former jeopardy in the

forfeiture action, and therefore, by definition, the government's
17

subsequent prosecution of the defendant does not constitute double

jeopardy.”). Additionally, an appellant has the burden of

directing the court to all relevant evidence in support of his

argument. See, United States v. Gonzalez, 76 F.3d 1339, 1342 (5th

Cir. 1996). If he fails to provide the necessary record for

review, we need not consider the issue on appeal. Id. at 1342.

Because Reginald Green fails to offer any evidence showing

that he appeared and contested the forfeiture of his vehicles, he

failed to establish former jeopardy. Having failed to establish

former jeopardy, he cannot now claim double jeopardy. Furthermore,

Reginald Green has failed to direct this Court to any record

evidence in support of his argument that the lis pendens filed

against his real properties constitutes a punishment. For these

reasons, we hold that Reginald Green has not shown that the

district court erred in denying his motion to dismiss the criminal

charges and sentence based upon double jeopardy. No error was

committed.

5. Validity of Search Warrant

Reginald Green argues that the district court erred in not

granting his motion to suppress evidence obtained from a search of

his home because, he argues, the search warrants were overly broad

and failed to specify with particularity the items to be searched.

The Fourth Amendment prohibits the issuance of general
18

warrants which allow officials to burrow through a person's

possessions looking for any evidence of a crime. United States v.

Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995), cert. denied, 116 S.

Ct. 1547 (1996), citing, Andresen v. Maryland, 96 S. Ct. 2737, 2748

(1976). A warrant must particularly describe the place to be

searched and the person or things to be seized. Id.; United

States v. Layne, 43 F.3d 127, 132 (5th Cir.), cert. denied, 115 S.

Ct. 1722 (1995). In testing whether a specific warrant meets the

particularity requirement, a court must ask whether an executing

officer reading the description in the warrant would reasonably

know what items are to be seized. Kimbrough, 69 F.3d at 727. “In

identifying the property to be seized, the agents are required to

interpret the warrant, but are not obliged to interpret it

narrowly.” United States v. Hill, 19 F.3d 984, 987 (5th Cir.)

(internal citations omitted), cert. denied, 115 S. Ct. 320 (1994).

This test for particularity may be made with supporting affidavits

if the warrant expressly refers to the affidavits. Layne, 43 F.3d

at 132. In circumstances where detailed particularity is

impossible, generic language is permissible if it particularizes

the types of items to be seized. Kimbrough, 69 F.3d at 727. The

ultimate determination of reasonableness of the search is a

conclusion of law which is reviewed de novo. United States v.

Capote-Capote, 946 F.2d 1100, 1102 (5th Cir. 1991), cert denied,

112 S. Ct. 2278 (1992).
19

Several search warrants were issued which collectively

authorized a search of the following locations:

1. The residence of REGINALD GREEN, a

dwelling house at 8848 Willmon, San Antonio, Texas;

2. The business of REGINALD GREEN, CRESTWAY

LIQUOR STORE, 5121 Crestway Drive, San Antonio,

Texas; 

3. The house and premises located at 1203

Hays Street, San Antonio, Texas.

4. A 1990 Nissan Pathfinder registered to

Reginald Green bearing Texas License CPY90L, VIN:

JN8HD17YXLW234841.

5. A 1987 Mercedes Benz registered to

Reginald Green bearing Texas License 877RWW, VIN:

WDBEA30D6HA570225.

Each search warrant referenced a 25-page affidavit by Federal Drug

Enforcement Agency Special Agent Morgan Thompson, which described

the items to be searched as follows:

(1) Controlled Substances, including cocaine,

as well as materials and paraphernalia used in the

weighing, cutting (diluting), packaging, concealing

and distributing controlled substances, including

cocaine;

(2) Books, records, receipts, notes, ledgers,

bank records, money orders, and/or papers relating

to, the transportation, importation, sale, and/or

distribution of controlled substances, including

cocaine, and/or records relating to the receipt

and/or disposition of the proceeds from the

transportation, importation, sale, and/or

distribution of controlled substances, including

cocaine;

(3) Currency, financial instruments, precious

metals, and/or other proceeds of the

transportation, importation, sale, and/or

distribution of controlled substances, including

cocaine, and records related to the laundering,
20

secreting and/or distribution of monies related to

illegal cocaine trafficking activities;

(4) Telephone and address books, telephone

toll records, or papers which reflect names,

addresses and/or telephone numbers of individuals

associated in the illegal transportation,

importation, sale, and/or distribution of

controlled substances, including cocaine; 

(5) Firearms and ammunition; and 

(6) Documents reflecting dominion and control

of properties used to illegally distribute,

transport, store, and conceal illegal controlled

substances and the proceeds of the transportation,

importation, sale, and or distribution of

controlled substances, including cocaine.

Reginald Green argues that this language was unconstitutionally overbroad such as to “authorize [the government] to seize

what they wished rather than requiring them to reasonably ascertain

and identify the items authorized to be seized.” We disagree.

The language in the warrants, as described through the affidavit,

properly limited the executing officers' discretion; an executing

officer reading the description in the warrant would reasonably

know what items were to be seized. Accordingly, we find this

contention to be without merit.

6. Sufficiency of the Evidence

The following issues constitute challenges based upon the

sufficiency of the evidence. First, Morman argues that the

evidence does not support the district court’s refusal to grant him
21

a “minor participant” two-level reduction in the sentencing offense

level. "[A] minor participant means any participant who is less

culpable than most other participants, but whose role could not be

described as minimal." United States v. Gaytan, 74 F.3d 545, 561

(5th Cir. 1996); U.S.S.G. § 3B1.2(b), comment (n.3). “[A] district

court should not make an adjustment for minor participation merely

because the defendant's participation is somewhat less than the

other participants'; to warrant such a downward adjustment, the

defendant's participation must be enough less so that he at best

was peripheral to the advancement of the illicit activity." United

States v. Castillo, 77 F.3d 1480, 1494 (5th Cir.), cert. denied,

117 S. Ct. 180 (1996). “The defendant bears the burden of proving

that his role in the offense was minor.” United States v. Atanda,

60 F.3d 196, 198 (5th Cir. 1995). 

We review the district court's application and legal

interpretation of the sentencing guidelines de novo, United States

v. Domino, 62 F.3d 716, 719 (5th Cir. 1995), and its findings of

fact for clear error. United States v. Hooker, 997 F.2d 67, 75

(5th Cir. 1993). "A factual finding is not clearly erroneous as

long as the finding is plausible in the light of the record as a

whole." United States v. Edwards, 65 F.3d 430, 432 (5th Cir.

1995). After reviewing the record, we find plausible the district

court’s refusal to find that Morman was a minor participant.

Accordingly, the district court committed no clear error. 
6 In Bailey v. United States, 116 S. Ct. 501 (1995), the Supreme

Court, construing 18 U.S.C. § 924(c)(1), held that the term “use”

(of a weapon) requires the “active employment” of the weapon by the

defendant. Id. at 505. Our Circuit has already held that Bailey

does not apply to § 2D1.1 enhancements. United States v. Castillo,

77 F.3d 1480, 1499 n.34 (5th Cir. 1996). 

22

Second, all Appellants argue that the evidence does not

support the district court’s application of a two-level increase in

their respective sentencing offense levels for possession of a

firearm. “The sentencing guidelines direct a sentencing court to

increase the defendant's sentence by two levels whenever, in a

crime involving the manufacture, import, export, trafficking, or

possession of drugs, the defendant possessed a dangerous weapon.”

United States v. Flucas, 99 F.3d 177, 179 (5th Cir. 1996); see,

U.S.S.G. § 2D1.1(b)(1). “Application Note 3 to § 2D1.1 explains

that this enhancement should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with

the offense.”6 Flucas, 99 F.3d at 179; and see United States v.

Mitchell, 31 F.3d 271, 277 (5th Cir.), cert. denied, 115 S. Ct. 455

(1995). "The burden of proof in this respect is on the government

under a preponderance of the evidence standard." United States v.

Sparks, 2 F.3d 574, 587 (5th Cir. 1993), cert. denied, 114 S. Ct.

720, cert. denied, 114 S. Ct. 899, cert. denied, 114 S. Ct. 1548

(1994). “The Government may satisfy its burden of proving a

connection between the weapon and the offense by showing that the

weapon was found in the same location where drugs or drug
23

paraphernalia are stored or where part of the transaction

occurred.” Flucas, 99 F.3d at 179. 

Neither the sentencing guidelines nor the case law

requires that the Government prove a defendant had

knowledge of a weapon's existence. The adjustment

must be made when a weapon is found at the scene of

the crime unless there is clear improbability that

the weapon is connected to the offense.

Flucas, 99 F.3d at 179. “[S]entencing courts [in drug cases] may

ordinarily infer that a defendant should have foreseen a

co-defendant's possession of a dangerous weapon, such as a firearm,

if the government demonstrates that another participant knowingly

possessed the weapon while he and the defendant committed the

offense." Sparks, 2 F.3d at 587, citing, United States v.

Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990). The district

court’s determination that a weapon was present and that its

possession by a co-conspirator was foreseeable is a factual finding

reviewable for clear error. 

In the instant case, it is undisputed that Demarco Morgan,

Samuel Hall, and Raymond Kinsey pled guilty to carrying a firearm

during, and in relation to, a drug trafficking crime, in violation

of 18 U.S.C. § 924(c). Morgan, Hall, and Kinsey were each involved

in the conspiracy. The district court did not clearly err in

finding that Morgan, Hall, and Kinseys’ possession of a firearm was

reasonably foreseeable to the other defendants as co-conspirators.

Finally, Ralph Green argues that the evidence does not support

the district court’s refusal to grant his motion to acquit.
24

Specifically, Ralph Green summarily asserts that the government did

not prove, beyond a reasonable doubt, that he was involved in a

conspiracy because he claims that the government’s witnesses were

incredible, unreliable, and their testimonies uncorroborated. He

asserts that many of the witnesses were drug dealers whose

testimonies were “substantially impeached by ‘deals’ with the

government.” 

In a sufficiency review, we must determine whether viewing the

evidence and the inferences therefrom in a light most favorable to

the jury's guilty verdicts, a rational trier of fact could have

found these defendants guilty beyond a reasonable doubt. United

States v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996). In denying

Ralph Green’s motion for acquittal, the district court passed on

the sufficiency of the evidence. We review the denial of the

motion for acquittal de novo, applying the same standards as in a

general sufficiency review. Payne, 99 F.3d at 1278; United States

v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert. denied, 113 S.

Ct. 330 (1992). 

The elements of a drug conspiracy are: "(1) the existence of

an agreement between two or more persons to violate narcotics law;

(2) the defendant's knowledge of the agreement; and (3) the

defendant's voluntary participation in the agreement." Payne, 99

F.3d at 1278; United States v. Gonzalez, 76 F.3d 1339, 1346 (5th

Cir. 1996). "A jury may infer the elements of a conspiracy
25

conviction from circumstantial evidence: an agreement to violate

narcotics law may be inferred from concert of action. Knowledge of

the conspiracy may be inferred from a collection of circumstances."

Payne, 99 F.3d at 1278; United States v. Leal, 74 F.3d 600, 606

(5th Cir. 1996) (internal quotations and citations omitted). 

We have previously held that “non-credibility is generally not

a sound basis for alleging insufficiency of the evidence; it is the

jury's function to determine credibility." Payne, 99 F.3d at 1278;

United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995). We have

also held that, unless the testimony is incredible or insubstantial

on its face, a guilty verdict may be supported by only the

uncorroborated testimony of a coconspirator, even if the witness is

interested due to a plea bargain of promise of leniency. Payne, 99

F.3d at 1278; United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir.

1994), cert. denied, 115 S. Ct. 1825 (1995). Ralph Green has

pointed to no evidence in the record showing that the testimony in

this case is incredible or insubstantial on its face, nor do we

find any upon our own review. Accordingly, there is sufficient

evidence to support the conspiracy conviction of Ralph Green. The

district court did not commit error.

7. Fast Food Receipt

Defendants argue that the district court erred in admitting

into evidence two government exhibits, namely: (1) a fast food
7 In relevant part, Rule 16(a) requires the government, upon

defendant’s request, to disclose to defendant and make available

for inspection, copying, or photographing any relevant written or

recorded statements made by the defendant which is within the

possession, custody, or control of the government. FED. R. CRIM. P.

16(a).

26

receipt from a San Antonio restaurant which law enforcement

officials found within Mormon’s possession when he was arrested

(Exhibit 68A), and (2) an enlarged photocopy of that receipt

(Exhibit 68B). This evidence was important to the government’s

case because it placed Mormon in San Antonio (where the drug

conspiracy was based) on the evening before his arrest. Defendants

argue that the district court should not have admitted this

evidence because it was never effectively disclosed to the

Defendants by the government. While Defendants acknowledge that

they were given an opportunity to generally review the government’s

documents, they argue that their opportunity to do so was hollow

because the government neither specified the contents of Exhibits

68(A) and (B) on its disclosure list, nor indicated its

significance. For the following reasons, we find no error.

During the discovery process, the government voluntarily

complied with FED. R. CRIM. P. 16(a)7 and specifically listed, inter

alia, items that the government intended to introduce at trial.

Among the descriptions of the items disclosed was the following:

“miscellaneous notes and papers found as the result of an August

17, 1993 traffic stop of Mormon.” It is not disputed that all of
27

the disclosed documents were made available to Defendants who

reviewed them at the office of the United States Attorney. 

The narrow issue presented for review is whether the

government substantially complied with the discovery requirements

of the Federal Rules of Criminal Procedure. United States v. Elam,

678 F.2d 1234, 1252 (5th Cir. 1982). “Rule 16, FED.R.CRIM.P., does

not require that the prosecution disclose all the minutiae of its

evidence, it does not require revelation of trial strategy; nor

does the Rule require delineation of the government's case with

total specificity.” Id. The admission of evidence which has not

been properly identified in any pretrial order or other procedure

is largely a matter for the sound discretion of the trial judge.

Id., citing, Calamia v. Spivey, 632 F.2d 1235 (5th Cir. 1980). 

Under the circumstances of this case, where the government's

exhibit list included a general reference to all of the disputed

records, and those records were made available to the defense, the

district court did not abuse its discretion in admitting those

records into evidence. Elam, 678 F.2d at 1253. We find no error.

8. Jury Instructions

Appellants argue that the district court abused its discretion

when it refused to grant Appellants’ proposed jury instructions

concerning a government witness’ immunity, credibility, and alleged

drug addiction. The district court held that the issues of
28

immunity and credibility were already addressed in the charge, and

that the evidence did not support an instruction concerning a

witness’ alleged drug addiction. 

The trial court has broad discretion in formulating its

charge, so long as the charge accurately reflects the law and facts

of the case. United States v. Allred, 867 F.2d 856, 868 (5th Cir.

1989). A defendant is entitled to a correctly stated instruction,

but not to his own particular language. United States v. Davis, 61

F.3d 291, 304-05 (5th Cir. 1995), cert. denied, 116 S. Ct. 961

(1996). “[A] district court may properly decline to give a

requested instruction which incorrectly states the law, is without

foundation in the evidence, or is stated elsewhere in the

instructions. Allred, 867 F.2d at 868 (citations omitted). The

defendant must show that the district court’s instruction failed to

correctly state the law. Davis, 61 F.3d at 304. 

Having reviewed the district court’s jury charge, we find that

it was an adequate statement of the law. The district court’s

refusal to give the requested instructions was not in error.

CONCLUSION

For the aforementioned reasons, the judgment of the district

court is, in all respects, AFFIRMED.