* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this o pinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR R. 47.5.4

. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50054

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

CEDRIC TERRANCE JONES,

SEAN TERENCE JONES, also known as

SEAN TERRANCE JONES; THOMAS JOHNNY EASTON

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

(W-96-CR-111-2)

April 15, 1999

Before WISDOM, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

Cedric Jones, Sean Terence Jones, also known as Sean Terrance Jones (hereinafter “Sean

Jones”), and Thomas Johnny Easton appeal their convictions on a sundry of drug related charges.

After careful review, we affirm.

I.

Cedric Terrance Jones, Sean Jones and Thomas Johnny Easton were convicted of conspiracy

to possess w it h int ent to distribute cocaine or “crack cocaine”, a Schedule II Narcotic Drug

Controlled Substance, from 1993 through 1996 in viola tion of 21 U.S.C §§ 841(a)(1) and 846.1 Additional counts were severed from the case and are not relevant to this appeal.

2 Easton was also found guilty of possession with int ent t o distribute a quantity of cocaine base or

“crack cocaine,” a Schedule II Narcotic Drug Controlled Substance, on July 16, 1996 in violation of

§ 841(a)(1). 1 These charges st em from the government’s investigation of each of the above

appellants and persons associated with them.

II.

A.

First, Cedric Jone s alleges that the prosecutor used perjured testimony when it allowed

Rondell Massie to testify to the quantity of crack cocaine he purchased from Cedric Jones in

contradiction to a previous statement during debriefing. A prosecutor denies a criminal defendant

due process when

it kno wingly uses perjured testimony at trial or allows untrue testimony to go

uncorrected. See Giglio v. United States

, 405 U.S. 150, 154 (1972); Napue v. Illino is

, 360 U.S. 264,

269 (1959); Creel v. Johnson

, 162 F.3d 385, 390 (5 th Cir. 1998). The defendant must show that (1)

the testimony was false; (2) the prosecution knew it was false; and (3) the testimony was material.

See Boyle v. Johnson

, 93 F.3d 180, 186 (5 th Cir. 1996); K irkpatrick v. Whitley

, 992 F.2d 491, 497

(5 th Cir. 1993). This tests presents a mixed question of law and fact. The court reviews the

underlying facts for clear error and the conclusions from the facts de novo. See C rell

, 162 F.3d at

391(citing Ornelas v. United States

, 517 U.S. 690, 699 (1996); United States v. O’Keffe , 128 F.3d

885, 894 (5 th Cir. 1997).

This co urt has previously held that presentation of a witness who contradicts his prior

testimony “is not to be confused with eliciting perjury.” U nited States v. Holladay

, 566 F.2d 1018,

1019 (5 th Cir.) cert denied , 439 U.S. 831 (1978). Accordingly, this claim must fail.

Second, Cedric Jones challenges the admission of audio tapes. Admission of tape recordings

falls within the sound discretion of the district court. U nited States v. Thompson

, 130 F.3d 676, 683

(5 th Cir. 1997) cert. denied 118 S.Ct. 2307 (1998). We reverse a decision to admit tape recordings3

only if the trial court abused its discretion as indicated by relying on an incorrect view of the law or

clearly erroneous factual findings. S ee id .; see also

, United States v. Buchanan

, 70 F.3d 818, 827 (5 th

Cir.) cert denied

, 477 U.S. 906 (1986). As we explained in T hompson

, 130 F. 3d at 683 (5 t h Cir.

1997), tape recordings are admissibl e in a criminal trial if they are reliable. The government must

establish that the tape recordings are accurat e, authenti c and trustworthy

. S ee id

. (citing United

States v. Carbone , 798 F.2d 21, 24 (1 st Cir. 1986).

Generally, this burden requires the gove rnm ent to demonstrate (1) the operator’s competency,

(2) the fidelit

y of the recording equipment, (3) the absence of material al terations, and (4) the

identification of relevant sounds or voices. S ee Buchanan

, 70 F.3d at 827 (5 t h Cir. 1995)(citing

United States v. Biggins , 551 F.2d 64 (5 th Cir. 1977)). Of course, upon such a showing, the party

challenging the recordings bears the burden of demonstrating that the tapes are inac c urate. S ee

Thompson

, 130 F.3d at 683. Overall, “[t]he district court’s discretion is not to be sacrificed to a

formalistic adherence to the standard we establish.” B iggins

, 551 F.2d 67. Therefore, the district

court may declin e t o adhere to this standard when it is satisfied that “the recording accurately

reproduces the audit ory experience.” U nited States v. Stone

, 960 F.2d 426, 436 (5 th Cir. 1992).

Cedric Jones’s challenge to the admissibility of tapes invites this court to adopt a formulaic

approach in applying the Big gins factors. We decline. Cedric Jones’s proffered reasons for

preventing admission of the tapes fail to show that the tap e reco rdings are inaccurate. Similarly,

Cedric Jones has not shown an abuse of discretion on the part of the trial judge. Cedric Jones would

have had the jury listen to 45 hours of tapes as opposed to the composite offered by the government.

At trial, Cedric Jones could have impeached the recordings once they were admitted into evidence

yet failed to do so. S ee Thompson

, 130 F.3d at 683. We find no basis for relief in this claim.

We apply a similar legal standard in considering Cedric Jones’s third challenge, the admission

of transcripts. S ee Thompson , 130 F.3d at 683. Cedric Jones’s complaint in this regard is without

merit. Cedric Jones has failed to show that the transcripts were materially altered or substantively

inaccurate. Instead, Cedric Jones highlights minor inaccuracies or inconsistencies which do not2 The jury was instructed:

please clearly understand that if you hear something that is different from what you read in

the transcript, then what you hear is what the evidence is and not what that transcri pt

suggests. That was made by an ordinary person, not a professional stenographer, and they

likely have no more experience in doing that than you would.

9 Record 698. On another occasion the judge directed the jury to disregard a portion of the transcript

which purported to transcribe a conversation not found on the composite tape.

3 According to the transcript, however, Agent Chapman qualifies his response explaining, “Due

to the content in the conversation, I fully believed he [Richardson] purchased from Cedric Jones.”9

Record 628.

4 significant ly undermine the bountiful evidence supporting his guilt. Moreover, Cedric Jones has failed

to show how the instruction to the jury failed to remedy any inaccuracies. 2

Fourth, Cedric Jones challenges the district court’s denial of an evidentiary hearing on his

motion to correct the record on appeal. A defendant must allege sufficient facts which, if proven,

would justify belief in order to warrant an evidentiary hearing. See United States v. Harrelson , 705

F.2d 733, 737 (5 th Cir. 1983); United States v. Smith

, 546 F.2d 1275 (1977). Neither general nor

conclusive assertions, founded upon mere suspicion or conjecture, will suffice. See H arrelson

, 705

F.3d at 737 (internal citations omitted). Therefore, the “[f]actual allegat io ns set forth in the

defendant’s motion, including any accompanying affidavits, must be sufficiently definite, specific,

detailed, and non-conjectural, to enable the court to conclude that a substantial claim is presented.”

Id . (internal quotations omitted).

Cedric Jones opines that the transcript of Case Agent Jack Chapman’s testimony has been

altered. At trial, Cedric Jones recollects Agent Chapman as responding, “No” when asked whether

he believed Cedric Jones sold crack cocaine hand-to-hand. 3 Cedric Jones does not have an adequate

basis for an evidentiary hearing. He fails t o o ffer a basis for his recollection of Agent Chapman’s

statements at trial. His affidavit, without additional evidence or information, is insufficient. Cedric

Jones has not produced any information bearing upon a collaboration between the court reporter and

the government to alter the trial transcript. Moreover, there is nothing inherently conflicting about

Agent Chapman’s testimony because it is conceivable that Cedric Jones trusted Steven Richardson4 Cedric Jones contends that Case Agent Jack Chapman coached witness Pamela Washington

during her testimony by “nods of the head.” Cedric Jones’s trial counsel complained. The district

judge held a bench conference and advised the government, “Tell him not to do it anymore.”

5 enough to engage in a hand-to-hand sale.

Finally, Cedric Jones accuses the govern ment of witness coaching during the trial. 4 We

review a claim of prosecutorial misconduct for reversible error. S ee United States v. Castillo

, 77 F.3d

1480, 1497 (5 th Cir. 1996). We seek to determine whether the alleged misconduct casts serious doubt

upon the correctness of the jury’s verdict. See id

. “For prosecutorial misconduct in the form of

improper comment or questioning to represent reversible error, it generally must be so pronounced

and persistent that it permeates the entire atmosphere of the trial.” Id

. (citing United States v. Iredia

,

866 F.2d 114, 117 (5 th Cir.), cert denied , 492 U.S. 921 (1989)). A defendant must show prejudice

to his abilit

y to receive a fair trial before charges will be dismissed for alleged government

misconduct. See United States v. Johnson , 68 F.3d 899, 902 (5 th Cir. 1995).

Cedric Jones has not satisfied the burden of showing prosecutorial misconduct or any

prejudice from the attendant conduct. The behavior ceased upon the judge’s immediate admonition.

Moreover, Pamela Washington explained on cross-examination that Agent Chapman had not been

giving her reassurances. She affirmed the veracity of her testimony and defended it against any notion

that Agent Chapman was directing her responses. Nothing in this conduct indicates impropriety on

the part of the government or Agent Chapman . Addit io nally, there is no indication that the

proceedings were in any way compromised by Chapman’s alleged behavior.

Finding no basis for relief, we affirm Cedric Jones’s conviction.

B.

Sean Jones raises two issues for our review: (1) the existence of a material variance between

the conspiracy charged in the indictment and the conspiracy proven a t trial; and (2) the sufficiency

of the evidence in support of his conspiracy conviction. We shall consider each in turn.

In order to prevail on a material variance claim, a defendant must demonstrate the existence6

of a variance and that the variance affected his substantial rights. S ee U nited States v. Ramirez

, 145

F.3d 345, 351 (5 th Cir. 1998); United States v. Davis

, 132 F.3d 1092, 1095 (5 th Cir. 1998); United

States v. Faulkner

, 17 F.3d 745, 762 (5 th Cir.), cer t denied , 513 U.S. 870 (1994). Otherwise, the

variance is reversible error. See Kotteakos v. United States

, 328 U.S. 750 (1946). Nevertheless,

where an “indictment alleges the conspiracy count as a single conspiracy, but the government proves

mult iple conspiracies and a defendant’s involvement in at least one of them, then clearly there is no

variance affecting the defendant’s substantial rights.” Davis , 132 F.3d at 1095.

Under the factors articulated in United States v. Marable

, 578 F.2d 151, 154 (5 th Cir. 1978),

this court det ermines whether the record demonstrates one or multiple conspiracies. These five

factors include: (1) the time frames during which the alleged conspiracies occurred; (2) the extent to

which the same person s were involved and the nature of their involvement; (3) whether statutory

offenses charged in the in dict ment s were the same; (4) whether the nature and scope of the

defendants’ activities charged in connection with each alleged conspiracy were repetitive and

continuous; and (5) whether the locations where the events alleged as a part of each conspiracy took

place were the same. Requiring the government to precisely allege the conspiracy it intends to prove

ensures that the indictment notifies the defendant adequately to permit him to prepare his defense and

does not leave the defendant vulnerable to a later prosecution because of failure to define the offense

with particularity. See United States v. Richerson , 833 F.2d 1147, 1155 (5 th Cir. 1987).

Our recent decision in Davis disposes of this issue. Even if t he go vernment alleged one

conspiracy and proved mult iple conspiracies, it would only have to show Sean Jones’s involvement

in at least one of them. Substantial evidence tends to indicate his involvement in the conspiracy to

distribute crack cocaine even though all of the co-conspirators may not have been aware of his

specific role. Moreover, Sean Jones cannot show prejudice because sufficient evidence revealed his

participation in at least one conspiracy in which he negotiated selling crack cocaine for Cedric Jones,

received payments for Cedric Jones and sold crack cocaine belonging to Cedric Jones. These acts

place him on common ground with others in the conspiracy who engaged in similar behavior.5 In April 1996, Rondell Massie traveled to Biloxi, Mississippi at the behest of Cedric Jones

with Sean Jones to make money selling crack cocaine. Sean Jones and Rondell Massie traveled with

the 252 grams of cocaine powder they received from Cedric Jones. At a Motel 6 in Biloxi, Rondell

Massie converted the 252 grams of powder cocaine to crack cocaine. During this time, Sean Jones

left the room but returned periodically. Because “somebody got busted or in trouble” Sean Jones and

Rondell departed Mississippi. Sean Jones turned over cash proceeds from the sale of crack cocaine

to Rondell Massie who retained $600 and forwarded the remainder to Cedric Jones.

7 Sean Jones also challenges the sufficiency of the evidence. Our review of the sufficiency of

the evidence following a conviction is narrow. See United States v. Westbrook

, 119 F.3d 1176, 1189

(5 th Cir. 1997). We resolve a claim of insufficient evidence by examining the evidence, together with

all credibility choices and reasonable inferences, in the light most favorable to the government. S ee

id

. We will uphold a verdict when we find that any reasonable trier of fact could have found that the

evidence established guilt beyond a reasonable doubt. S ee id

. However, the evidence need not

exclude every possible hypothesis of innocence. S ee id

. We apply a narrow review to the sufficiency

of the evidence following a conviction.

The essence of a conspiracy is an unlawful agreement. S ee I annelli v. United States

, 420

U.S. 770 (1975). The conspirator must knowingly agree to join at least one other person to bring

about a common goal. S ee United States v. Perez

, 489 F.2d 51, 61 (5 th Cir. 1973). As we explained

in United States v. Harbin

, 601 F.2d 773, 78 1 (5 th Cir. 1979), “[t]here must be proof bey ond a

reasonable doubt that a conspiracy existed, that [the alleged] participant knew of it, and that with this

knowledge, he vo lunt arily became a part of it.” Since there is rarely any direct evidence of an

agreement to join a criminal conspiracy, t he defendant’s assent can be inferred from acts which

furthered the conspiracy’s purpose. Westbrook , 119 F.3d at 1189.

We find abundant evidence linking Sean Jones to C e dric Jones and Rondell Massie. 5

Considering the evidence in the light most favorable to the government, we find that Sean Jones: (1)

made t wo deliveries of crack cocaine to Steven Richardson who was working on behalf of the

police’s investigation in Austin, TX; (2) traveled to Bilo xi, MS with Rondell Massie t o sell crack

cocaine with an implicit understanding that the profits would be returned to Cedric Jones; (3) initiated8

contact with Richardson; (4) negotiated drug deals and turned over finalization of the transaction to

Cedric Jones; (5) arranged the payment by wire of $20 for Cedric Jones’ crack cocaine. The evidence

below demonstrates that Sean Jones was involved in the conspiracy from at least from April 1996,

when he traveled to Bilo xi, Mississippi and continued through August 30, 1996 and September 22,

1996 when he made two separate deliveries of four and five ounces of crack cocaine. Sean Jones

does little to rebut the abundance of evidence linking him to Cedric Jones, Massie and the conspiracy.

The absence of merit in Sean Jones’s claims lead us to affirm his conviction.

C.

Thomas Easton challenges his conviction base d o n (1) t he search of his vehicle; (2) the

existence of a fatal variance between crack cocaine and the drugs found in his vehicle; (3) testimony

in the hope of leniency; (4) his entitlement to a limiting instruction. Having conducted our review,

we find no basis to overturn Easton’s conviction.

To search a vehicle, the government must prove, by a preponderance of the ev idence, that

consent to search was freely and voluntarily given. See e.g

., United States v. Tompkins , 130 F.3d

117, 121 (5 th Cir. 1997). Voluntariness is determined fro m the totality of circumstances. S ee

, id

.

Relevant factors for det ermining voluntariness include: (1) the voluntariness of the defendant’s

custo dial st at us; (2) the presence of coercive police procedures; (3) the extent and level of the

defendant’s cooperati on with the po lice; (4) the defendant’s awareness of his right to refuse to

consent; (5) the defendant’s education and intelligence; and (6) t he defendant’s belief that no

incriminating evidence will be found. S ee U nited States v. Tompkins , 130 F.3d 117, 121 (5 th Cir.

1997). We review the district court’s determination of voluntariness, a finding of fact, under the

clearly erroneous standard. See id

. at 120-21; U nited States v. Gonzales

, 121 F.3d 928, 938 (5 th Cir.

1997).

The totality of the circumstances indicates consent. Most telling in this regard was Easton’s

request for the officer to retrieve a pair of shorts from within the vehicle. The district court did not

find, nor has Easton established a ny fo rce o r coercion. Deputy Constable Stephen Godfrey, the6 We reject each of Easton’s alternative arguments. First , we find that Easton voluntarily

consented to the search of his vehicle. Next, the search of t he passenger compartment was

objectively reasonable and not outside the scope of consent. See e.g.

, United States v. McSween

, 53 F.3d 684 (5 th Cir. 1995)(We look for “objective reasonableness” to determine whether a search

was made within the scope of consent.). Again, the officer asked to search the vehicle. Easton never

objected. On the contrary, Easton, who was driving in his boxer shorts, asked the officer to retrieve

his short pants while searching the passenger compartment of the vehicle. During this search, the

officer found a quantity of cocaine in salt form behind the driver’s seat.

7 The evidence adduced at trial bearing on the issue of possession relates to events occurring

in the Nacogdoches, TX which is within the jurisdiction of the United States District Court for the

Eastern District of Texas. The superseding indictment was brought in the Western District of Texas.

9 arresting officer, did not request to search only the trunk of the vehicle. Rather, the record indicates

t hat Godfrey asked Easton if he would allow him to take a look at the vehicle to whic h Easton

agreed. 6

Easton’s second challenge to his conviction centers on his concern that he may be prosecuted

again in the United States District Court for the Eastern District of Texas. 7 As explained above, in

order for a variance to be fatal to a conviction, it must affect the substantial rights of the accused.

A reversal is mandated when there is either (1) insufficient information in the indictment to

inform an accused of the charges such that the lack of information causes a surprise and prevents the

presentation of a proper defense or (2) insufficient protecti on against reprosecution for the same

offense. S ee U nited States v. Sheikh

, 654 F.2d 1057, 1066 (5 th Cir. 1981), cert denied

, 455 U.S. 991

(1982).

The judgment of conviction as supported by the informati on in the record bars future

prosecution. S ee United States v. Stricklin

, 591 F.2d 1112, 1118 (5 th Cir.)(double jeopardy may be

established by the indictment, other documents, or even the defendant’s testimony), cert. denied

, 444

U.S. 963 (1979). East o n does not acknowledge the effect of his criminal conviction based on the

same facts as those which would support an indictment in the Eastern District of Texas. He fails to

rebut the establishment of d o uble jeopardy by the indictment or other information in the record.8 Easton posits that the issue is whether he could have been subj ect to prosecution i n the

Eastern District of Texas at the time the indictment was brought in the Western District of Texa s

. While we find no merit in this claim, even if there was a variance in the indictment permitting such

an outcome, it would have been harmless error. S ee United States v. Pierce

, 893 F.2d 669 (5 th Cir.

1990).

10 Furthermore, Easton fails to contradict the government’s observation that the burden of proof at trial

and during sentencing is the same. In all respects, the offenses are the same; therefore, jeopardy has

attached and Easton may not be subject to a subsequent prosecution in the Eastern District of Texas. 8

Third, Easton complains that the government presented testimonial evidence from witnesses

who were eith er expressly or impliedly offered something in exchange for their testimony. We

summarily reject Easton’s argument. In U nited States v. Cervantes-Pacheco

, 826 F.2d 310, 314 (5 th

Cir. 1987), we held that the credibility of a witness is to be determined by the jury. A witness may

testify pursuant to a plea agreement invo lving a promise of a reduced sentence so long as this fact is

disclosed to the jury. S ee id

. It is well settled that one panel of this court may not overrule another

panel of this court.

Even if we could, the case upon wh ich Easton relies, U nited States v. Singleton

, 144 F.3d

1343 (10 th Cir. 1998)(hold ing that the plain language of § 201(c)(2) prohibits prosecutors from

making promises "of value" to witnesses in exchange for testimony) is no longer precedent within the

Tenth Circuit. S ee United States v. Singleton

, 165 F.3d 1297, 1301-02 (10 th Cir. 1999)(“However,

in an American criminal prosecution, the granting of lenience is an authority that can only be

exercised by the United States through its prosecutor; therefore, any reading o f § 201(c)(2) that

would restrict the exercise of this power is surely a diminution of sovereignty not countenanced in

our jurisprudence.”). Moreover, we have rejected the Tent h Circuit’s controversial holding in

Singleton

. S ee United States v. Haese

, 162 F.3d 359, 366 (5 th Cir. 1998)(“This Circuit.

. .has rejected

the applicability of the Singleton court’s holding.”)(internal citation omitted); see also

, United States

v. Webster

, 162 F.3d 308, 356-58 n. 79 (5 th Cir. 1998)(“A review of this circuit’s precedents shows.

. .that we consistently have upheld government efforts to provide benefits to witnesses in exchange9 Easton explains that the following evidence, harmful to him, should have been limit ed: (1) coappellant’s alleged conversation with authorities that he wanted to work out some sort of deal for his

testimony, thereby implying guilt and (2) certain hearsay statements about Easton being arrested with

some drugs. Easton argues that it was unclear as to whether or not this was an extraneous matter

impermissibly discussed under Rule 404(b) of the Fed. R. Evid.

11 for testimony.”). Finally, we are not bound to follow precedent from our sister circuits. Singleton

offers no basis for relief.

Finally, we addre ss Easton’s argument that he was entitled to a limiting instruction. 9 The

standard of review for an alleged failure to give a proper limit ing instruction, when a proper objection

has been made, is abuse of discretion. United States v. Speer

, 30 F.3d 605 (5 th Cir. 1994). Absent

a proper objection, the standard of review is plain error. Fed. R. Cri m . Proc. 52(b). Nei ther of

Easton’s two claims appear to merit redress in light of the standard of review and the record. He has

not sh o wn prejudice or otherwise overcome the substantial evidence pointing to his guilt in the

charged offenses.

When the government attempted to introduce evidence relevant to Cedric Jon es’s alleged

conversations with an IRS agent and others, the district court sustained Easton’s hearsay objection.

Consequently, the prosecutor was prohibited from exploring the details of a meeting between Cedric

Jones and other authorities. Moreover, Easton may not challenge the voluntary statements or

confession of Cedric Jones as hearsay under Fed. R. Evid. 801(d)(2)(A); ther efore, he was not

entitled to a limit

ing instruction as hearsay. Furthermore, none of the statements implicated Easton

an d t he district court charged the jury that the case against each defendant should be considered

separately and individually. Combined, we find that any error was harmless and did not affect

Easton’s substantial rights.

In like manner, we reject Easton’s second claim relating to the testimony of Yolanda Row.

The district court sustained Easton’s objection to her testimony a nd instructed the jury not to

consider any testimony or other evidence which had been stricken.

Finding no basis for relief, we affirm Easton’s conviction.12 III.

We AFFIRM the conviction of each appellant. To the extent each appellant adopts arguments

articulated by another appellant, we similarly find no basis for relief.