Case remanded and vacated by

Supreme Court order dated 12/4/00
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4532

LUDENCE ALFORD TURNBULL, JR.,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITHROY NOEL CLARKE, a/k/a

No. 98-4583

Michael St. Clair Davis, a/k/a

Tyrone Roberts, a/k/a Capone, a/k/a

"T", a/k/a Khadafi,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-97-166)

Argued: March 3, 2000

Decided: May 2, 2000

Before WILKINSON, Chief Judge, and WILLIAMS

and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Paula Xinis, Assistant Federal Public Defender, Balti- ARGUED:

more, Maryland, for Appellant Clarke; Stanley E. Sacks, SACKS &

SACKS, Norfolk, Virginia, for Appellant Turnbull. Robert Edward

Bradenham, II, Assistant United States Attorney, Norfolk, Virginia,

for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: James Wyda, Federal Public Defender,

Baltimore, Maryland, for Appellant Clarke. Helen F. Fahey, United

States Attorney, Laura Pellatiro Tayman, Assistant United States

Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ludence Turnbull and Keithroy Clarke were convicted by a jury of

conspiracy to import cocaine and cocaine base, conspiracy to distribute cocaine and cocaine base, conspiracy to launder money, and

related offenses. Turnbull and Clarke appeal their convictions and

resulting sentences, alleging error at various aspects of the pretrial,

trial, and sentencing phases of the criminal proceeding against them.

For the reasons that follow, we find no merit to their challenges. We,

therefore, affirm Turnbull's and Clarke's convictions and sentences.

I. FACTUAL BACKGROUND

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

v. United States, 504 U.S. 255, 257 (1992), the evidence adduced at

trial showed the following facts. In September 1994, Eugene Smalls

(Eugene), Angel Ventura, and other co-conspirators began importing

cocaine from St. Thomas to the Norfolk, Virginia area. Initially, the

conspirators transported the cocaine on commercial flights through

unaccompanied baggage placed on the plane by a member of the St.

 2
Thomas National Guard, and they sent couriers to baggage claim to

pick up the cocaine once it arrived in Virginia. Once the cocaine

arrived in Virginia, it was converted into crack cocaine and provided

to local distributors.

One of Eugene's local distributors was Ludence Turnbull. According to Ventura, Eugene gave Turnbull a discount because Turnbull

was from the Virgin Islands. In January 1995, Ernest McNair, another

one of Eugene's distributors, went to Eugene's residence in Virginia

Beach to purchase crack cocaine from Eugene. Eugene told McNair

to wait. While McNair was waiting, Turnbull arrived, carrying a little

brown purse. According to McNair, Turnbull went into the back room

and Eugene followed. After four or five minutes, Eugene returned and

gave McNair a kilogram of crack cocaine. McNair testified that

because Eugene told him that he would have to wait, he surmised that

Eugene did not have any crack cocaine prior to Turnbull arriving.

When some of the cocaine was stolen from a bag placed on a plane

from St. Thomas to Virginia, the conspirators began to look for alternative methods to transport the cocaine. At the suggestion of Keithroy

Clarke and Eugene's brother, Mitchell Smalls (Mitchell), the conspirators began in early 1995 to use women's purses to hide the cocaine

before shipping the cocaine via Federal Express. Matters soon took

a turn for the worse. In September 1995, unbeknownst to the conspirators, McNair began to cooperate with the Virginia Beach Police

Department. Over the next several months, McNair recorded conversations with Eugene concerning purchases of cocaine. McNair also

participated in a videotaped purchase of a kilogram of crack cocaine

from Eugene and other co-conspirators. Shortly thereafter, law

enforcement officials arrested Eugene and three other co-conspirators

at Eugene's home.

Despite the arrest of Eugene, importation of cocaine from St.

Thomas into Virginia continued in 1996, with the means of importation shifting to body-smuggling by human couriers. In early 1996,

Yvette Westbrook agreed to make a trip to St. Thomas to obtain drugs

for the conspiracy. Clarke and Mitchell explained to Westbrook that

she would be paid $1,300 for bringing back one kilogram of cocaine.

In May 1996, Turnbull obtained Westbrook's airplane ticket and

drove her to the airport. After Westbrook successfully smuggled the

 3
cocaine on her body, Turnbull picked up Westbrook at the Norfolk

airport and took her to her apartment. While Turnbull waited in the

living room of Westbrook's apartment, Westbrook placed the cocaine

into a duffel bag. Westbrook gave the duffel bag containing cocaine

to Turnbull, who then left the apartment. Later that day, Clarke came

by Westbrook's apartment and paid her the agreed-upon $1,300 for

smuggling the cocaine.

After witnessing Westbrook successfully smuggle drugs, Quichelle

Martin, Westbrook's roommate, agreed to smuggle drugs for the conspiracy. Clarke gave Martin the money for the airline tickets, and

Clarke and Turnbull drove Martin to the airport to purchase the tickets. The morning of her trip, Turnbull drove Martin to the airport.

Unfortunately for the conspirators, Martin's trip to St. Thomas was

not as successful as Westbrook's. At the St. Thomas airport, Customs

officials pat-searched Martin, discovered the kilogram of cocaine, and

arrested Martin.

At the same time that the conspirators were importing drugs from

St. Thomas into Virginia, they were wiring money via Western Union

between those two places to facilitate the purchase of drugs in St.

Thomas and the operations of the conspiracy in the United States.

Cleon Procope testified that in 1995 he received checks in St. Thomas

from Turnbull and Mitchell in Virginia. Procope also testified to

sending checks to Turnbull in Virginia on four separate occasions in

1995. In 1996, the conspirators began to recruit individuals to transfer

money to St. Thomas via Western Union in order to conceal the true

identity of the sender and receiver of the money. Monica Tucker testified to receiving money from Turnbull and sending it to various individuals in St. Thomas, including Akebo Thomas and Milton Barnes,

and to receiving money on Turnbull's behalf. Tonya Watts, Shara

Hawley, and Linda Cannon also testified to sending money to St.

Thomas for Turnbull. Akebo Thomas testified that on numerous occasions in 1995 and 1996 he would receive Western Union wire transfers in St. Thomas from various individuals, including Monica

Tucker, which he would cash and deliver to Mitchell. Milton Barnes

and Aisha Snipes also testified to receiving money for Mitchell. The

majority of these testified-to transactions occurred around and during

May 1996, the same time period as the trip by Westbrook to St.

Thomas to smuggle drugs for the conspiracy.

 4
In November 1997, Turnbull was arrested by federal law enforcement officials in Norfolk for his involvement in the drug conspiracy.

One month later, federal law enforcement officials arrested Clarke in

New York. Turnbull and Clarke were charged in a twenty-five count

indictment in the United States District Court for the Eastern District

of Virginia along with eleven co-defendants.1 Count One charged

Turnbull, Clarke, and eight co-defendants with conspiracy to import

cocaine and cocaine base from St. Thomas, U.S. Virgin Islands, in

violation of 21 U.S.C.A. § 963 (West 1999); Count Two charged

Turnbull, Clarke, and nine co-defendants with conspiracy to distribute

cocaine and cocaine base, in violation of 21 U.S.C.A. § 846 (West

1999); and Count Three charged Turnbull, Clarke, and six codefendants with conspiracy to launder money, in violation of 18

U.S.C.A. § 1956(h) (West Supp. 1999). In addition, Count TwentyThree and Twenty-Four charged Turnbull and Clarke with importation of cocaine from St. Thomas, in violation of 21 U.S.C.A. §§ 952,

960 (West 1999), and attempted importation of cocaine from St.

Thomas, in violation of 21 U.S.C.A. §§ 952, 960, 963, respectively.

Count Twenty-Five charged Clarke with an additional count of

attempted importation of cocaine from St. Thomas. Turnbull was also

charged with six counts of money laundering (Counts Seven, Nine,

Twelve, Thirteen, Seventeen, and Nineteen) and Clarke was also

charged with nine counts of money laundering (Counts Eight, Ten,

Eleven, Fourteen, Sixteen, Eighteen, Nineteen, Twenty, and TwentyTwo), in violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West Supp.

1999).

The trial commenced on March 16, 1998. At trial, the district court

denied Turnbull's motion for judgment of acquittal on Counts One,

Two, and Three. On April 6, 1998, the jury returned its verdict. The

jury convicted both Clarke and Turnbull of Counts One, Two, Three,

and Twenty-Three. The jury also convicted Clarke of Counts TwentyFour and Twenty-Five, but acquitted him on all the money laundering

counts for which he was indicted.2 The jury also convicted Turnbull

_________________________________________________________________

1 According to the Government, nine of the co-defendants pleaded 1 

guilty, one died, and one is a fugitive. Turnbull and Clarke are the only

defendants to appeal their convictions or sentences.

2 The district court granted Clarke's motion for judgment of acquittal 2 

on Count Ten.

 5
on all the money laundering counts for which he was indicted, but

acquitted him on Count Twenty-Four. The district court sentenced

Turnbull to 400 months of imprisonment and Clarke to 293 months

of imprisonment. Turnbull and Clarke filed timely notices of appeal.

In a consolidated brief, Turnbull and Clarke assert a number of

grounds for reversal on appeal. With regard to the pretrial proceedings, Turnbull argues that the district court erred in denying his

motion for severance and Clarke argues that the district court erred in

denying his motion to substitute retained counsel. As to the trial,

Turnbull argues that the evidence was insufficient to sustain his conviction on Counts One, Two, and Three of the indictment, which

charged a single conspiracy, and that the district court erred in admitting several Western Union wire transactions to which neither the

sender nor receiver testified.3 Clarke argues that the prosecutor

impaired Clarke's substantial rights by vouching for, and bolstering

_________________________________________________________________

3 Turnbull also argues that the district court erred in admitting the fol- 3 

lowing evidence: (1) Ernest McNair's testimony that Turnbull provided

drugs to Eugene Smalls to sell to McNair, (2) Quichelle Martin's testimony that Yvette Westbrook gave drugs to Turnbull, (3) a letter written

from jail by Martin to Westbrook, and (4) Customs Agent Tom

Radermacher's testimony, offered as background for explaining his

actions during the investigation, that Turnbull was residing with Mitchell

Smalls at the St. Croix Apartments in Virginia Beach. Turnbull also

argues that the district court erred in allowing the Government, in its

cross-examination of law enforcement officers who were called for the

limited purpose of establishing a prior inconsistent statement of Government witnesses, to exceed the scope of direct examination. We have

carefully considered these arguments and find them meritless. See Fed.

R. Evid. 701 (inferences rationally based upon perception of witnesses

and helpful to a clear understanding of these witnesses' testimonies and

to the determination of a fact in issue are admissible); Fed. R. Evid.

801(d)(2)(E) (co-conspirator exception to hearsay rule); United States v.

Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (holding that an out-of-court

statement offered for the purpose of explaining why a government investigation was undertaken was not hearsay); Fed. R. Evid. 106 ("When a

writing or recorded statement or part thereof is introduced by a party, an

adverse party may require the introduction at that time of any other part

or any other writing or recorded statement which ought in fairness to be

considered contemporaneously with it.").

 6
the testimony of, Government witnesses during rebuttal argument.

Finally, with regard to sentencing, Clarke argues that the district court

erred in enhancing his offense level by two levels pursuant to

U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with

the drug conspiracy. Turnbull and Clarke assert error during the pretrial, trial, and sentencing proceedings. We address each argument in

turn.

II. PRETRIAL PROCEEDINGS

A.

Turnbull argues that the district court erred in denying his pretrial

motion for severance. Turnbull contends that being tried jointly with

his co-defendants severely prejudiced him because the substantial evidence introduced by the Government that the co-defendants participated in the single conspiracy alleged in the indictment, in addition

to the Government's evidence of lawful association between Turnbull

and these co-defendants, led the jury to find Turnbull "guilty by association," even though the evidence showed that Turnbull was only

involved in a separate, independent conspiracy. Turnbull asserts that

this prejudice greatly outweighed the possible inconvenience and

expense to the Government and witnesses of trying him separately.

The rule in this Circuit is that "[d]efendants who have been charged

in the same conspiracy indictment should ordinarily be tried

together." United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir.

1992). Federal Rule of Criminal Procedure 14 provides an exception

to this rule in allowing severance of trials where"prejudice" would

result from a joint trial. See Fed. R. Crim. P. 14. "Such prejudice may

be shown only where there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent

the jury from making a reliable judgment about guilt or innocence."

United States v. Smith, 44 F.3d 1259, 1266 (4th Cir. 1995) (internal

quotation marks omitted). "The fact that the evidence against one

defendant is stronger than the evidence against other defendants does

not in itself justify severance." Brooks, 957 F.2d at 1145. We review

a district court's denial of a motion for severance for abuse of discretion. See id.

 7
Turnbull's argument is essentially that he was convicted on the

basis of "spillover" evidence. We do not find this argument persuasive. While the Government's evidence against Turnbull may not

have been as strong as the evidence against some of his codefendants, the evidence was surely strong enough to implicate him

in the conspiracy to import and distribute drugs and the conspiracy to

launder money. See infra Part III.A. Turnbull presents no evidence

that the jury was not properly instructed that it was not to consider the

evidence against one defendant when deciding the guilt or innocence

of another defendant, or that the jury improperly considered evidence

implicating his co-defendants against him. In sum,"[t]his is not a case

in which a defendant was convicted simply by innuendo because his

associates were plainly guilty." Brooks, 957 F.2d at 1145 (internal

quotation marks omitted). The district court, therefore, did not abuse

its discretion in denying Turnbull's pretrial motion for severance.

B.

Clarke argues that the district court erred in denying his pretrial

motion to substitute one privately retained counsel, Paulette

Taliaferro, for another, Charles Malone. Clarke asserts that (1) he

filed his motion almost one month before trial and the district court

had sufficient time to address the motion without radically changing

the trial schedule, (2) the district court's inquiry was inadequate,

because it failed to inquire thoroughly into Clarke's dissatisfaction

with Malone, and ignored completely the issue of whether granting

the motion would delay the trial, and (3) Clarke and Malone both represented that a "breakdown in communication" had occurred. Clarke

contends that the record indicates that this communication breakdown

remained unchanged at trial and that Taliaferro's presence as additional counsel failed to remedy the situation because Taliaferro's role

was minor.

Although the Sixth Amendment to the Constitution guarantees a

criminal defendant the right to assistance of counsel, a defendant does

not have an absolute right to the lawyer of his or her choice. See

United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). We review

a district court's denial of a defendant's motion to substitute counsel

for abuse of discretion. See id. In determining whether a district court

has abused its discretion in denying such a motion, this Court consid-

 8
ers three factors: (1) the "[t]imeliness of the motion," (2) the "adequacy of the court's inquiry into the defendant's complaint," and (3)

"whether the attorney/client conflict was so great that it . . . resulted

in total lack of communication preventing an adequate defense." Id.

(internal quotation marks omitted).

In addition to arguing that the district court abused its discretion

under the familiar Mullen standard, Clarke also urges us to follow the

lead of the Ninth Circuit and adopt a different standard for reviewing

a district court's denial of a motion to substitute retained counsel. The

Ninth Circuit, however, applies the equivalent of the Mullen test

where granting a motion to substitute retained counsel would require

a continuance. See United States v. D'Amore, 56 F.3d 1202, 1204-07

(9th Cir. 1995), overruled on other grounds by United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999). Although Clarke now contends that substitution here would not require a continuance, he never

informed the district court of this before the court ruled on his substitution request. Indeed, by his words and omissions, Clarke gave the

district court strong reason to believe that substitution of retained

counsel would require a continuance. His pro se motion seeking substitution of counsel was actually titled "Motion for Continuance" and

asked that the trial be continued for "not more than six weeks and not

less than four weeks" so that he could "acquir[e] new counsel." (J.A.

at 90.) Although the district court treated the motion as one to substitute counsel, the court clearly understood the relief requested to

encompass a four to six week delay of trial in order for new counsel

to prepare. Indeed, Clarke's counsel at the time, Malone, advised the

court at the hearing on the motion, "I think he[Clarke] would have

to give his argument with regard to why he wants me removed and

why he wants a continuance." (J.A. at 95.) Although Clarke, in

response to the district court's inquiry into his dissatisfaction with

Malone, went into great detail as to the asserted deficiencies in

Malone's representation, Clarke did not at any time inform the court

that he was no longer requesting a four to six week continuance. The

court subsequently twice asked Clarke whether he had anything else

to say and Clarke twice responded in the negative. Even after the

prosecutor argued that the substitution of counsel"could not meet the

deadline of the trial" and "would obviously be a great imposition on

the government because we've got at this time five other codefendants that are going to be tried" and the court asked Clarke and

 9
Malone whether they had anything further to say, Malone replied,

"No, Your Honor." (J.A. at 99-100.) On this record, the district court

certainly did not abuse its discretion in concluding that granting

Clarke's motion to substitute retained counsel would require a continuance, and, therefore, even under Ninth Circuit precedent, the Mullen

inquiry applies.4

With regard to the first Mullen factor,"the court is entitled to take

into account the . . . public interest in proceeding on schedule." Id.

(internal quotation marks omitted). Clarke filed his pro se motion on

February 20, 1998, nearly one month before the trial was scheduled

to begin. The motion was not heard until March 4, 1998, twelve days

before trial, and the district court cited the proximity to trial as one

of the reasons why the motion was denied. Because that delay cannot

be attributed to Clarke, however, the timeliness factor should favor

him. See United States v. Johnson, 114 F.3d 435, 443 (4th Cir. 1997)

(finding that timeliness factor favored the defendant because he raised

the issue of counsel's withdrawal in pro se motion filed over a month

and a half before trial, and the motion was never forwarded to the district court judge, the prosecutor, or defense counsel); Mullen, 32 F.3d

at 896 (finding that the timeliness factor favored the defendant

because she had filed her motion to dismiss counsel twenty-seven

days before trial, and the motion would have been heard in adequate

time had the government not forgotten to file a response).

_________________________________________________________________

4 On appeal, Clarke maintains that in his motion for reconsideration, he 4 

"indicat[ed] substitution would not cause delay." (Appellants' Br. at 18.)

In that motion, Clarke stated: "I presently have employed more experienced Counsel ready to assume my business before Your Honorable

Court, if your Honor will grant me the freedom to terminate old counsel

and activate new counsel, we can proceed." (J.A. at 91.) Taken alone, at

least arguably, this statement does "indicate" an ability to "proceed"

without a continuance. However, when considered in conjunction with

Clarke's immediately preceding motion (for a four to six week continuance), which was filed less than a month earlier, this statement hardly

constitutes a sufficient basis to alert the court that Clarke no longer

sought a continuance. Moreover, we note that Clarke points to no place

in the transcript where he or counsel directly told the court that he no

longer requested a continuance.

 10
With regard to the second factor, "[a]n inquiry into the reasons for

a defendant's dissatisfaction with his or her lawyer is necessary for

the trial court to determine whether good cause for substitution of

counsel exists." Id. At the hearing on the motion, the district court

asked Clarke for his reasons for wanting to remove Malone. Clarke

essentially complained that he suspected Malone had been working

with the Government, that Malone had failed to file certain motions

requested by Clarke, and that Malone had only visited Clarke twice

in jail. The district court pressed Clarke on his suspicion that Malone

was working with the Government, and Clarke replied that he had no

evidence supporting his suspicion and could not reveal more without

incriminating himself. The court subsequently twice asked Clarke

whether he had anything else to say and Clarke twice responded in

the negative. As for the motions not filed by Malone, the district court

heard from Malone that, in his professional opinion, the motions

requested by Clarke were frivolous. We conclude that this inquiry

into Clarke's complaint was adequate. See id. The court did not abuse

its discretion in failing to inquire further into the breakdown in communication between Clarke and Malone, in light of the lack of evidence in the record that this issue was reasserted during the trial or

that it impaired Malone's performance as counsel. 5 See United States

v. Gallop, 838 F.2d 105, 108-09 (4th Cir. 1988).

The final factor we must consider is whether there was a total lack

of communication preventing an adequate defense. At the hearing,

Clarke stated that Malone "was not doing the right thing as far as getting involved in my case or going over my case with me," (J.A. at 97),

and that Malone had visited him only twice in jail; Malone agreed that

communications broke down when Clarke was transferred from Portsmouth to Williamsburg. From January until the time of the hearing in

early March, Malone did not see Clarke in person, although he did

talk with Clarke on the phone. From this course of events, Clarke

attempts to analogize his case to the factual situation of Mullen. Mul-

_________________________________________________________________

5 On March 13, 1998, Clarke moved for reconsideration of his motion 5 

to substitute counsel. The district court denied this motion for reconsideration on the morning of trial, concluding that Clarke "ha[d] the best of

all worlds" in being represented by both Malone and Taliaferro. (J.A. at

111.) There is no evidence in the record that Clarke made any further

attempts to get rid of Malone.

 11
len is readily distinguishable, however, because in that case, the

defendant repeatedly refused to consult with her attorney during the

trial, with the result being that the attorney was unable to provide any

assistance. See 32 F.3d at 896-97. By contrast, the record in this case

indicates that Malone, assisted by Taliaferro, aggressively defended

Clarke. As such, we believe that this case is more analogous to cases

in which we have found no total lack of communication. See Johnson,

114 F.3d at 443-44 (no total lack of communication where, despite

communication problem between defendant and attorney, attorney

acted on behalf of his client and filed relevant motions); United States

v. Hanley, 974 F.2d 14, 17 (4th Cir. 1992) (no total lack of communication where attorney assisted defense by vigorously cross-examining

government witnesses); Gallop, 838 F.2d at 109 (no total lack of

communication where attorney assisted defendant during trial and

cross-examined government witness).

In sum, although the timeliness factor favors Clarke, the record

indicates that the district court conducted an adequate inquiry and that

there was not a total breakdown in communication between Clarke

and Malone that prevented an adequate defense. We note that the district court was caught in a difficult situation. If it denied Clarke's

motion to substitute counsel, Clarke could bring a claim that he was

denied his Sixth Amendment right to counsel of his choice, as he did

here. If the court granted Clarke's motion to substitute counsel, and

Taliaferro was unprepared to try the case, Clarke could bring a claim

of ineffective assistance of counsel on collateral attack. Under these

circumstances, the district court took the prudent approach, which

was to keep Malone in the case, while allowing Taliaferro to work

with Malone. Tellingly, Clarke makes no claim that Taliaferro was

precluded or hampered in the extent of her participation in the

defense. The district court, therefore, did not abuse its discretion in

denying Clarke's pretrial motion to substitute counsel.

III. TRIAL PROCEEDINGS

A.

Turnbull first argues that the evidence was insufficient to sustain

his conviction on Counts One, Two, and Three of the indictment,

which charged a single conspiracy to import cocaine and cocaine

 12
base, to distribute cocaine and cocaine base, and to launder money,

respectively. Turnbull contends that there was a fatal variance

between the single conspiracy charged in the indictment and the proof

adduced at trial, which established multiple, separate, and independent conspiracies. Turnbull asserts that the evidence only showed his

limited participation in one of those separate conspiracies and was

insufficient to show that he knew about, joined, or knowingly participated in the single conspiracy, which involved illicit activities in St.

Thomas, Georgia, North Carolina, Detroit, New York, and Virginia.

"A single conspiracy exists where there is one overall agreement

or one general business venture." United States v. Leavis, 853 F.2d

215, 218 (4th Cir. 1988) (internal quotation marks and citations omitted). "Whether there is a single conspiracy or multiple conspiracies

depends upon the overlap of key actors, methods, and goals." Id. "In

a conspiracy prosecution, a defendant may establish the existence of

a material variance by showing that the indictment alleged a single

conspiracy but that the government's proof at trial established the

existence of multiple, separate conspiracies." United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). Because"a conspiracy variance claim amounts to a challenge to the sufficiency of the evidence

supporting the jury's finding that each defendant was a member of the

same conspiracy," United States v. Townsend , 924 F.2d 1385, 1389

(7th Cir. 1991), we will sustain the jury's verdict"if there is substantial evidence, taking the view most favorable to the Government, to

support it," Glasser v. United States, 315 U.S. 60, 80 (1942).

"[S]ubstantial evidence is evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of a

defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

Applying the Leavis factors to this case, we are persuaded that the

jury's finding that a single conspiracy existed was supported by substantial evidence. The Government's proof established a significant

overlap of key actors: almost all of the activities of the coconspirators, both indicted and unindicted, involved Eugene, Mitchell, or Clarke. Although the means of importing the cocaine from St.

Thomas into the United States varied over time, ranging from unaccompanied baggage to Federal Express packages to body-smuggling

by human couriers, the cycle of drugs smuggled into the United States

 13
and drug proceeds wired back to St. Thomas via Western Union to

purchase more drugs remained constant over the course of the conspiracy. Finally, the goal of the conspiracy remained the same over

time: to import cocaine from St. Thomas into the continental United

States, transform it into crack cocaine, and distribute it. Viewed in the

light most favorable to the Government, this evidence supports the

jury's finding of a single conspiracy to import cocaine and cocaine

base, distribute cocaine and cocaine base, and launder money.6

Substantial evidence also supports the jury's conclusion that Turnbull participated in this single conspiracy. Two drug couriers, Yvette

Westbrook and Quichelle Martin, testified that Turnbull helped obtain

their airplane tickets to St. Thomas and transported them to the airport

for their flight to St. Thomas to pick up drugs. Angel Ventura testified

that Turnbull was one of Eugene's distributors, and McNair testified

that on one occasion he had to wait for Turnbull to arrive at Eugene's

residence before being able to purchase crack cocaine from Eugene.

Finally, numerous individuals testified to sending money from St.

Thomas via Western Union to Turnbull in Virginia, to receiving

money in St. Thomas via Western Union from Turnbull in Virginia,

and to being recruited by Turnbull to send money from Virginia via

Western Union to various individuals in St. Thomas. Viewed in the

light most favorable to the Government, this evidence is sufficient to

sustain Turnbull's convictions on Counts One, Two, and Three,

respectively. The fact that the Government did not introduce evidence

that Turnbull participated in pre-indictment drug distribution in

Detroit and Georgia, drug distribution in New York, or initial drug

distribution in Virginia is irrelevant because Turnbull may properly

be convicted of participation in the single conspiracy even without

taking part in the full range of the conspiracy's activities or without

being involved in the conspiracy over the whole period of its existence. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).

_________________________________________________________________

6 The record indicates that the district court properly instructed the jury 6 

on single versus multiple conspiracies, and Turnbull raises no challenge

to the jury instructions.

 14
B.

Turnbull next argues that the district court erred in admitting several Western Union exhibits documenting money transfers involving

Turnbull or Clarke where neither the actual sender nor actual recipient

of the funds testified, on the ground that these exhibits were hearsay.

The district court admitted these exhibits under Federal Rule of Evidence 803(6) upon finding that the documents at issue were business

records that were trustworthy because the documents contained personal information to which only the sender and receiver, both members of the conspiracy, would have been privy.7 Turnbull argues that

anyone could use his name or telephone number on a Western Union

to-send form and the mere fact that a recipient is required by Western

Union to show identification is insufficient to establish that the person

named in the record was the person who actually received the money.8

We review the district court's decision to admit these Western Union

exhibits for abuse of discretion. See United States v. Wells, 163 F.3d

889, 895 (4th Cir. 1998), cert. denied, 120 S. Ct. 109 (1999).

The Western Union money transfer documents at issue are clearly

hearsay because they were offered by the Government to show that

Turnbull laundered the proceeds of the conspiracy's drug sales by

sending and receiving money via Western Union. See Fed. R. Evid.

801(c); United States v. McIntyre, 997 F.2d 687, 701 (10th Cir. 1993).

These money transfer documents are therefore inadmissible unless

they fall within an exception to the hearsay rule. The district court

admitted the records under Federal Rule of Evidence 803(6), which

allows admission of business records "unless the source of informa-

_________________________________________________________________

7 Each Western Union exhibit consisted of the to-send form, the to- 7 

receive form, the draft copy of the check issued to pay the transfer, and

the computer record of the money transfer. A to-send form is a form

filled out by the customer at a Western Union counter that lists the sender's name, address, and telephone number, the name of the intended

recipient, and the amount of money being wired. A to-receive form is a

form completed by the payee that lists the sender's name, the recipient's

name, and other information needed to identify the transaction. See

United States v. Arteaga, 117 F.3d 388, 391 (9th Cir. 1997).

8 The exhibits challenged are 9H, 9J, 9Z, 9EE, 9FF, 9II, 10B, 10Z, 8 

10BB, and 10DD.

 15
tion or the method or circumstances of preparation indicate lack of

trustworthiness." Fed. R. Evid. 803(6). When the source of the information in the business record is an outsider, however, this information

is excluded unless there is evidence that the business recipient had

adequate verification of the information provided by the outsider. See,

e.g., United States v. Reyes, 157 F.3d 949, 952-53 (2d Cir. 1998) (collecting cases); United States v. Mitchell, 49 F.3d 769, 778 (D.C. Cir.

1995); United States v. Cestnik, 36 F.3d 904, 908 (10th Cir. 1994).

Adequate verification may be demonstrated by "(1) proof that the

business has a policy of verifying patrons' identities by examining

their credit cards, driver's licenses, or other forms of identification;

or (2) proof that the business possesses a sufficient self-interest in the

accuracy of the [record] to justify an inference of trustworthiness." Id.

(internal quotation marks omitted and alteration in original).

In this case, a Western Union custodian of records, Jan Effinger,

testified that a test question would be used if the sender wanted the

recipient to receive the money without having to show identification.

Implicit in Effinger's testimony is that identification is required

absent a test question. Moreover, the Western Union forms stated that

the recipient of the wire transfer must show identification in order to

receive it. Because Western Union required the verification of identity

to receive money, either in the form of an answer to a test question

or identification, documents showing Turnbull as the recipient of wire

transfers were admissible. See McIntyre, 997 F.2d at 702. The district

court, therefore, did not abuse its discretion in admitting exhibits 9II

and 10Z, which documented Western Union transactions in which

Turnbull was the recipient and the sender did not testify.

By contrast, the record does not indicate that Western Union took

similar measures to ensure the accuracy of the information provided

by customers on the to-send forms. Effinger testified that Western

Union agents do not verify the information completed by the sender

unless the amount sent is $10,000 or greater.9 Effinger also conceded

that Western Union does not have any control over an individual providing a false name on a to-send form and does not keep any records

to verify who actually requested the transfer. Because Western Union

_________________________________________________________________

9 All of the money transfers at issue involved amounts less than 9 

$10,000.

 16
has no way to know from its records who actually requested the

money to be sent, the accuracy of the records depends upon the person filling out the to-send form. As the district court noted, however,

the conspirators used fake names and fake IDs. Under these circumstances, Turnbull's name on the Western Union to-send forms was

not admissible for its truth under the business records exception to the

hearsay rule. See United States v. Vigneau, 187 F.3d 70, 77 (1st Cir.

1999), cert. denied, 120 S. Ct. 1200 (2000); Cestnik, 36 F.3d at 908.

Accordingly, the district court abused its discretion in admitting

exhibits 9H, 9J, 9Z, 9EE, 9FF, 10B, 10BB, and 10DD, which documented Western Union transactions in which Turnbull (or Clarke

using Turnbull's telephone number) was the sender and the recipient

did not testify.10

Having concluded that the district court abused its discretion in

admitting Western Union exhibits in which Turnbull was the alleged

sender and the recipient did not testify, we turn now to whether this

error mandates reversal of any of his convictions. A district court's

erroneous evidentiary ruling is harmless error if we can "say with fair

assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not substantially swayed by the error." United States v. Heater, 63 F.3d 311, 325

(4th Cir. 1995) (internal quotation marks omitted). Turnbull concedes

_________________________________________________________________

10 We are not persuaded by the Government's arguments that these 10 

exhibits should be admitted because the recipient of the funds was

required to show identification and because the transfers fit into a general

pattern of sending money between Virginia and St. Thomas. Whether the

transfers could be admitted against the recipient is irrelevant to the issue

of whether they are admissible to show the identity of the alleged sender,

Turnbull. Moreover, we believe that admitting these exhibits simply

because they fit into a general pattern established by properly admitted

Western Union exhibits is impermissible bootstrapping. Had the Government introduced independent evidence (such as eyewitness testimony

and handwriting exemplars) to establish that Turnbull was the actual

sender in these transactions, the to-send forms would arguably be the

admission of a party-opponent, and, therefore, non-hearsay. See United

States v. Vigneau; 187 F.3d 70, 74-75 (1st Cir. 1999), cert. denied, 120

S. Ct. 1200 (2000); United States v. Johnson , 28 F.3d 1487, 1498 (8th

Cir. 1994). The record does not indicate, however, that the Government

introduced such independent evidence.

 17
in his brief that "the six Counts in the indictment alleging money

laundering were sufficiently supported by the evidence," but argues

that the inadmissible exhibits were prejudicial"as to the extent of his

knowledge of the scope of the conspiracy charged and the extent of

his participation therein." (Appellants' Br. at 47.) We interpret this

argument as a challenge to the jury's conviction of Turnbull on Count

Three, the conspiracy-to-launder-money charge, and find it unpersuasive. The evidence of properly admitted Western Union exhibits,

taken cumulatively, is more than sufficient to support the jury's conclusion that Turnbull conspired to launder money. See Vigneau, 187

F.3d at 78. The district court's improper admission of exhibits documenting transactions in which Turnbull was the sender and the recipient did not testify was, therefore, harmless error.

C.

Clarke challenges his conviction on the ground that during rebuttal

argument, the prosecutor impaired Clarke's substantial rights by

improperly vouching for, and bolstering the testimony of, Government witnesses. During rebuttal argument, the Assistant United States

Attorney made the following statements:

 In drug conspiracies the government ends up with a situation of having to utilize convicted felons, drug dealers, like

that, in order to get people at this particular level, because,

see, we can't find, you know, good citizens that witness

these things. We don't find any preachers and priests and

schoolteachers and Sunday school teachers that observe

these things going on. I have been doing this for a number

of years, and I have looked for those witnesses, but you

don't find them. You end up with the people that have testified for the government, the Watleys, the McNairs, the Clint

Williamses, the Fernandezes, the Venturas. That's what we

have to deal with.

(J.A. at 524-25.)

And furthermore, this agreement -- these are not agreements where we sit down and have everybody in the drug

conspiracy sign a single document. I have been doing this

 18
for a number of years, and I have been looking for that

agreement, but that never happens. It is a very informal

thing. You know, you do this, you do that, drugs come up

here, it is sold, money goes back down there. It is a very

loosely run, informal type of conspiracy.

(J.A. at 526-27.)

Look how the witnesses, how their testimony meshes

together. The ones that have plea agreements with the government, their plea agreements are based upon truthful

cooperation. If they don't testify truthfully, they have got

another series of problems to deal with.

(J.A. at 528.)

Because Clarke failed at trial to object to the statements made by

the prosecutor during rebuttal argument, we review Clarke's challenge to these statements on appeal for plain error. See Fed. R. Crim.

P. 52(b), United States v. Olano, 507 U.S. 725, 731-32 (1993). Under

Federal Rule of Criminal Procedure 52(b), a court of appeals cannot

correct an error not noted below unless the error was "clear under current law" and was prejudicial in that it "affected the outcome of the

district court proceedings." Id. at 734. Although the decision whether

to correct a plain forfeited error that affects substantial rights is left

to the sound discretion of the court of appeals, the court should exercise that discretion "if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736

(alteration in original) (quoting United States v. Atkinson, 297 U.S.

157, 160 (1936)).

It is improper for a prosecutor to vouch for, or bolster the testimony of, its own witnesses. See United States v. Lewis, 10 F.3d 1086,

1089 (4th Cir. 1993). "Vouching generally occurs when the prosecutor's actions are such that a jury could reasonably believe that the

prosecutor was indicating a personal belief in the credibility of the

witness." Id. "Consequently, the prosecutor may not, among other

things, make explicit personal assurances that a witness is trustworthy

or implicitly bolster the witness by indicating that information not

presented to the jury supports the testimony." Id. Impermissible

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vouching and bolstering does not necessarily mandate retrial, however. Instead, "[t]he relevant question is whether the prosecutor[`s]

comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." United States v. Sanchez, 118

F.3d 192, 198 (4th Cir. 1997) (internal quotation marks omitted). In

making this determination, this Court examines "(1) the degree to

which the comments could have misled the jury; (2) whether the comments were isolated or extensive; (3) the strength of proof of guilt

absent the inappropriate comments; and (4) whether the comments

were deliberately made to divert the jury's attention." Id.

Clarke first argues that the prosecutor's comment regarding how

the Government could not find witnesses such as school teachers and

religious leaders improperly vouched for the credibility of its witnesses because it assured the jury that the witnesses were the most

truthful available. We disagree. Although it would have been preferable had the prosecutor not interjected, "I have been doing this for a

number of years," we believe that his comment did not suggest any

personal belief about the credibility of any witnesses, but merely

acknowledged that the witnesses in this case, like the witnesses in all

drug conspiracy cases, were not model citizens. Cf. United States v.

Adam, 70 F.3d 776, 780 (4th Cir. 1995) (noting that prosecutor's use

of the phrase "I think" in an innocuous, conversational sense "d[id]

not suggest an attempt to replace the evidence with the prosecutor's

personal judgments"). By stating "[t]hat's what we have to deal with"

at the end of the comment, the prosecutor left it to the jury to make

up its own mind about the credibility of the Government's witnesses.

Moreover, Clarke points to no case in which a similar comment has

been deemed improper vouching. See Sanchez, 118 F.3d at 198.

We are also not persuaded by Clarke's argument that the prosecutor's comment that there is not a formal written agreement in a drug

conspiracy impermissibly bolstered the Government's case by telling

the jury that the evidence in this case was sufficient to convict Clarke.

As with the previous comment, it would have been preferable had the

prosecutor not interjected, "I have been doing this for a number of

years." Nevertheless, we do not believe that any jury could reasonably

believe that the prosecutor was claiming that his experience from

prior trials supported the evidence of conspiracy presented at this

trial. Cf. Adam, 70 F.3d at 780. Rather, the prosecutor was instructing

 20
the jury not to look for a formal written document, but to determine

whether the evidence established an "informal" conspiracy. Again,

Clarke points to no case in which a similar comment has been deemed

improper bolstering. See Sanchez, 118 F.3d at 198.

Finally, we reject Clarke's contention that the prosecutor impermissibly vouched for the veracity of witnesses when he commented

that the witnesses who testified pursuant to plea agreements would

have to testify truthfully or face additional problems. This Court has

held that a prosecutor may introduce the terms of a witness's plea bargain, including the promise of truthfulness, in its case-in-chief so long

as the prosecutor does not imply that he has special knowledge of the

witness's veracity and does not make improper use of the plea bargain

promise of truthfulness in closing argument. See United States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983). In this case, the prosecutor

did not imply in rebuttal argument that he had any special knowledge

of the veracity of witnesses who had entered into plea agreements, but

he merely recited the terms of the agreement. The prosecutor also did

not "disproportionately emphasize[ ] or repeat[ ]" the promise of

truthfulness in the agreements. Id. Accordingly, the prosecutor's comment did not constitute impermissible vouching or bolstering.

Even assuming, arguendo, that the prosecutor's comments constituted impermissible vouching or bolstering, we do not believe that

these comments could have unfairly prejudiced Clarke, much less "seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings" as required by the plain-error standard. Olano, 507 U.S.

at 736 (internal quotation marks omitted). The prosecutor's comments

were not misleading, and the district court clearly instructed the jury

that "[s]tatements and arguments of counsel are not evidence in the

case." (J.A. at 1110.) The prosecutor's comments were three isolated

comments during a long rebuttal argument following an unobjectionable closing argument. Although the Government's evidence against

Clarke consisted entirely of witness testimony, the proof of Clarke's

guilt was quite strong; indeed, Clarke does not attack the sufficiency

of the evidence. Finally, the prosecutor's comments were not deliberately made to divert the jury's attention, but rather made to focus the

jury's attention on the relevant evidence. See Sanchez, 118 F.3d at

198-99 (applying prejudice standard and reaching same conclusion).

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IV. SENTENCING PROCEEDINGS

Finally, Clarke argues that the district court erred in enhancing his

offense level by two levels pursuant to U.S.S.G.§ 2D1.1(b)(1) for

possession of a firearm in connection with the drug conspiracy.

Clarke contends that this enhancement was based solely upon the

hearsay testimony of Customs Agent Tom Radermacher at sentencing

relating the trial testimony of Lisa Zeigler, who testified that she saw

Clarke and other men counting money with guns beside them at

Eugene's home, where Clarke allegedly lived. Clarke asserts that

Radermacher's testimony was patently unreliable because Zeigler's

trial testimony was impeached by her prior sworn statements at

Eugene's trial, where she never mentioned seeing any men counting

money with guns beside them in Eugene's home, and because Radermacher conceded that the incident could have happened when Clarke

was still living in the Virgin Islands.

Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a

two-level increase in the offense level for a drug conviction if the

defendant possessed a firearm. See U.S.S.G.§ 2D1.1(b)(1). "The

adjustment should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense."

U.S.S.G. § 2D1.1, comment. (n.3). The district court's finding that

Clarke possessed a firearm in connection with a drug offense is a factual determination that we review for clear error. See United States v.

Rusher, 966 F.2d 868, 880 (4th Cir. 1992). In reviewing the district

court's application of the Sentencing Guidelines, we give "due regard

to the opportunity of the district court to judge the credibility of the

witnesses." 18 U.S.C.A. § 3742(e) (West Supp. 1999).

Contrary to Clarke's contention, the district court did not rely

solely upon Agent Radermacher's testimony relating Zeigler's sworn

trial testimony in applying the enhancement, but it also relied upon

its own trial notes and recall of Zeigler's testimony. Zeigler testified

at trial that she witnessed Clarke, Eugene, Mitchell, and another coconspirator at Eugene's residence counting large amounts of currency

with guns beside them. Zeigler also testified that Clarke came to her

house after Eugene was arrested to tell her not to testify against

Eugene and that Clarke's statements made her scared. Although

Zeigler could not recall when she witnessed Clarke and others count-

 22
ing money with guns beside them and testified at Eugene's trial that

she did not witness such an incident, the district court reasonably concluded that Zeigler was an extremely reluctant witness who did not

want to testify because she was afraid of Clarke and that her testimony was credible. Because the district court could find Zeigler's testimony credible, see United States v. Hyppolite , 65 F.3d 1151, 1159

(4th Cir. 1995), and Zeigler's testimony established by a preponderance of the evidence that Clarke possessed a firearm in connection

with a drug transaction, the district court did not clearly err in applying the two-level enhancement to Clarke's offense level pursuant to

§ 2D1.1(b)(1).

V. CONCLUSION

For the reasons discussed, we find no reversible error at the pretrial, trial, or sentencing phases of the criminal proceeding against

Turnbull and Clarke. We, therefore, affirm Turnbull's and Clarke's

convictions and sentences.

AFFIRMED

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