## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________ *
* No. 04-3669 * __________ *
* United States of America, *
* Appellee, *
* v. *
* Erroll Flynn Shepard, *
* Appellant. * Appeals from the United States District Court for the District of Nebraska. __________ *
* No. 04-3693 * __________ * [PUBLISHED]
* United States of America, *
* Appellee, *
* v. *
* Tony Skannell, also known as Tomcat, *
* Appellant. *-2- __________ *
* No. 05-1024 * __________ *
* United States of America, *
* Appellee, *
* v. *
* Barry Renfold Cooley *
* Appellant. *

__________ *
* No. 05-1827 * __________ *
* United States of America, *
* Appellee, *
* v. *
* Roy G. Straughan, also known as * George Clark, also known as * C-Note (3), also known as * C-Nutt (3), *
* Appellant. *1 Shepherd was indicted and referred to as "Shepard" throughout the proceedings prior to this appeal. However, it appear s the correct spelling is "Shepherd" and that spelling will be used throughout this opinion.

-3- ________________ Submitted: January 9, 2006 Filed: September 11, 2006

________________ Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

________________ HANSEN, Circuit Judge.

Erroll Flynn Shepherd, 1 Tony Skannell, Barry Cool ey, Roy Straughan, Vincent Brown, and Oraina Fellows were indictedby a federal grand jury on one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing a det ectable amount of cocaine base between November 1, 2000, and November 5, 2001, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. Brown and Fellows entered into plea agreements with the Government and testified against the appellants, while th e other four proceeded to trial. Trial began on May 19, 2004, and a jury returned verdicts of guilty against all four appellants on May 28, 2004. The jury also found that the conspiracy involved 50 grams or more of a mixture or substan ce containing cocaine base. Cooley was sentenced to life in prison and Shephe rd, Straughan, and Skannell were each sentenced to 360 months of imprisonment. All four appeal, raising multiple issues. For the reasons set forth herein, we affi rm the conspiracy conviction as to each appellant and the sentences of Straughan and Cooley, but we vacate the sentences of Shepherd and Skannell and remand their cases to the district court for resentencing.-4- I.

A large number of pretrial motions were filed in this case, many by the appellants, and that, along w ith the number of defendant s involved, caused several delays in setting a trial date . While the indictment was filed on October 24, 2002, the joint trial did not commence until May 19, 2004. Shepherd succe ssfully petitioned to represent himself and proceeded pro se, w ith standby counsel appointed to assist if requested, while the other three defe ndants were represented by counsel.

At trial, the Government offered the testimony of five alleged coconspirators to establish the conspiracy, and also pres ented the testimony of Officer Steve Orsi of the Omaha, Nebraska, Police Department. Because each of the appellants challenges the sufficiency of the evidence as to him, we provide a rather thorough account of the testimony from the trial, which we present "in the light most favorable to the jury verdict, as we are required to do." United States v. Milk , 447 F.3d 593, 596 (8th Cir. 2006).

Officer Orsi testified that he had beenassigned to the Narcotics Unit for five years and primarily worked long-term investigations, many of which involved conspiracies. He testified about his expe rience as a narcotics officer investigating long-term drug conspiracies and how he conducted such investigations himself. Over an objection, Officer Orsi testified as to what the average cost in Omaha was to purchase powder cocaine and crack, and wh at he understood to be "dealer amounts" of narcotics as opposed to drug amounts for indi vidual use. Officer Orsi also testified as to how investigations into drug cons piracies are generally conducted, including how officers work to corroborate the storie s of witnesses and coconspirators, why investigators work with individuals char ged with drug crimes, and what evidence investigators use in such investigations.-5- Oraina Fellows, who entered into a pl ea agreement two days before trial, testified against the appellants. She te stified that from September 1999 to October 2001 she lived in an apartment in Omaha, Nebraska. She met Shepherd in 2000 through Anthony Wiley, a man she was dating at the time. Fellows testified that Shepherd and Wiley would cook powder cocaine into crack in her apartment. Shepherd and Fellows late r became romantically invol ved, and in December 2000, Shepherd asked Fellows to rent the apartment across the hall from her place for him. Shepherd arranged to pay the rent and utilities. Fellows st ated that between December 2000 and April or May 2001, Shepherd and others w ould come and go from her apartment and the apartment across the hall, sometimes staying for a couple of weeks at a time.

Soon after she rented the apartment for Shepherd, Fellows stated that Skannell moved into it. She also saw Straughan at the apartment at various times. Fellows testified that she saw all four defendants at the apartment across the hall cooking powder cocaine into crack. Shepherd woul d give Fellows money to pay bills and buy groceries, and Fellows prepared meals for the people staying in the other apartment. Shepherd also often asked Fellows to obt ain the items necessary to cook the powder into crack. She testified that Straughan accompanied her on one trip to obtain such materials, as did Cooley on another trip . Fellows maintained that she did not participate in the cooking process.

Fellows testified that she saw Shepherd with a package of what she believed to be powder cocaine or crack in May 2001, and that she thought he received similar packages several times from April 2001 th rough the end of that summer. She estimated that during that time she saw Ska nnell give Shepherd such a package three or four times and Cooley give packages to Shepherd more than twice. Fellows began to see less of Skannell and Cooley in Se ptember or October 2001, and Shepherd told her that he had had a falling out with th e two men over a cocaine cooking session that had occurred at the apartment without Shepherd's knowledge or participation.-6- Throughout the spring and summer of 2001, Fellows estimated that she was in the apartment across the hall and saw powde r cocaine being cooked into crack more than two times but less than ten. She also testified that during those times all four defendants were present, along with various other people. Fellows also admitted that she herself was using powde r and crack cocaine two or three times a day from December 2000 through October 2001, as we ll as smoking marijuana and drinking alcohol.

Fellows testified that she observed Cool ey pass money to Shepherd more than once between December 2000 and September 2001. In that same time period, she saw Skannell give Shepherd money multiple times at the apartment in Omaha and twice in Los Angeles. She did not see Straughan give money to Shepherd, but she did observe Vincent Brown pass money to Shepherd numerous times.

Curtis Holmes testified for the Governme nt. He stated that he was testifying pursuant to a plea agreement and that he believed the terms of his plea agreement required that he cooperate w ith law enforcement and talk about his involvement with the appellants. Holmes stated he had been sentenced to 292 months of imprisonment, that the judge could still lower his senten ce, and that he had two prior federal convictions—a felony crack cocaine convic tion and a conviction for being a felon in possession of a firearm.

Holmes testified that he was acquainted w ith all four defendant s. He first met Shepherd in March 2001 when he had some cocaine powde r he wanted to cook into crack. Shepherd and Holmes’ cousin cooke d nine ounces of cocaine powder into 15 or 16 ounces of crack cocainefor Holmes. As payment for the cooking, Holmes gave 3 or 4 ounces of crack to the men. Holmes then saw Shepherd again in May or June 2001 at a hotel in Los Angeles. Shepherd helped Holmes locat e a man Holmes was looking for in order to purchase some cocaine. At that time, Shepherd introduced Holmes to Cooley, who then introduced Holmes to Brown.-7- Soon after the meeting in Los Angeles, Holmes met Shepherd at the apartment in Omaha that Fellows had rented. Holmes testified that it appeared Shepherd was living in the apartment. At this meeting, Holmes paid Shepherd for marijuana that Shepherd had sold him. About two weeks later, Holmes again met Shepherd at the apartment, where he received nine ounces of crack cocaine fro m Shepherd, packaged in single, plastic-wrapped packages. Holmes testified that Skannell was present in the apartment when he received this crack from Shepherd. Holmes took the crack, broke the packages down into quart er ounces, and sold them around Omaha. Once he sold all the crack, Holmes went back to the apartment and paid Shepherd $2,400.

Approximately two weeks later, Holmes again purchased nine ounces of crack from Shepherd, this time for $5,400, obtaining some of the crack on credit. After the crack was sold, Holmes retu rned to the apartment and paid Shepherd the amount he still owed. Holmes testified that Shepherd would make trips to Omaha from California and stay a few weeks, then be gone for two or three weeks, and then Shepherd would come back to Omaha, which supported Fellows’ similar testimony. He testified he met with Sh epherd approximately every two or three weeks at the apartment throughout the summer of 2001.

Holmes obtained crack a third time at th e apartment in Omah a, this time from Cooley who had come into town from Los Angeles. Holmes watched Cooley and Brown cook the crack, and Holmes then bought nine ounces for $5, 400. Shepherd and Skannell were not present on this occasion. About two weeks later, Holmes went back a fourth time to obtain crack, this time speaking with Shepherd. Holmes testified that he watched Shepherd c ook powder cocaine into crack and that he then purchased nine ounces. Skannell and Cooley were also in the apartment while the cook occurred, which took about one or two hours. A couple of days later, Holmes went back to the apartment and purchased a few more ounces, this time from Cooley.-8- Sometime after July 4, 2001, Holmes pur chased another nine ounces of crack at the apartment. This tim e, only Brown and Cooley were in the apartment and Brown handled the transaction. About two weeks later, Holmes saw Sh epherd and Skannell at the apartment, but Holmes did not purchase any crack on that visit.

Holmes made another purchase of cr ack from Brown and Cooley in August 2001. Brown again handled the transaction, but Cooley was in the room at the time it occurred. Somewhere around this time, Br own informed Holmes that he could get cocaine cheaper if he bought it in Los Ange les. Toward the end of September 2001 Holmes drove to Los Angeles and purchased 18 ounces of powder cocaine from Brown. Holmes drove back to Omaha, a nd a few days later met Brown and Straughan at an apartment that Holmes had rented , where they cooked the 18 ounces of powder into 24 ounces of crack cocaine. Holmes kept nine ounces of the crack. Holmes testified that he rented this new apartmen t because the men want ed to get away from the old apartment. He es timated that Brown and Straughan stayed in the new apartment for about two weeks before leaving Omaha.

Holmes made another trip to California approximately two or three weeks after the first trip. On this trip, Holmes pur chased a kilogram of powder cocaine from Brown. Holmes hid the packages in his carand then he and his cousin, along with two women, Danae Scott and Monique Noah, madethe drive back to Nebraska. Holmes testified that he had seen the two wome n a few weeks earlier at the apartment in Omaha he had rented for Brown and Straughan. Back in Omaha, Brown, Straughan, and Holmes cooked 18 ounces of the powder in to crack. Scott and Noah were present in the apartment while the cook occurred. Holmes sold the crack around the Omaha area. The next day Holmes returned to the apartment and obtained nine more ounces, which he sold for Brown and Straughan. About two or three weeks later, Brown, Noah, Scott, and Straughan left Omaha.-9- In November 2001 Holmes made a third trip to California, purchasing 1.5 kilograms of powder cocaine from Brown. Noah and Scott accompanied Holmes on the drive back to Omaha, along with a man named Latayo Clark. Holmes said that he had seen Clark before, in the apartment across from Fellows’, cooking crack. On his way back to Omaha on this trip, Holmes wa s stopped on Interstate 80, the cocaine was discovered, and all four travelers were arrested.

Holmes testified that he received cocai ne from other sources during this same time period. On one occasion he receive d two kilograms of powder cocaine from a different supplier and had Skannell cook it into crack for hi m. Holmes paid Skannell two or three ounces of crack for his help. In addition to the one apartment Holmes rented for Brown and Straughan, he testified that he rented a second apartment for them a few blocks away in October 2001. He visited the apartment soon after the second trip to California and saw Straughan, Brown, Scott, and Noah there. While Holmes never brought powder cocaine to this apartment, he testified that he did deal cocaine with others there. Holmes’ c ousin was the apartment manager of both complexes from which Holmes rented thes e apartments, and Ho lmes had arranged an "off the books" rental from his cousin. Holmes stated that while he never paid rent on the apartments, he saw both Cooley and Brown do so.

Vincent Brown also testified for the G overnment as part of a plea agreement. He had not yet been sentenced but was h oping that his cooperati on would lead to a lower sentence. Brown testified that heknew all of the defendants, though by their street names. He stated that he al so knew Holmes, whom he had met through Shepherd. Shepherd and Ho lmes were in Los Angeles, and Shepherd called Brown to ask him for marijuana for Holmes. Brown provided Holmes with approximately ten pounds of marijuana, for which Brown expected $2,500. At some point after receiving the marijuana from Brown, Shepherd and Holmes returned to Omaha. After he did not receive payment from Holmes or Shepherd, Brown traveled to Omaha. Upon his arrival, he called Shepherd, who told Brown to go to the apartment across-10- from Fellows’, where he met with Holmes. Over the approximately one or two weeks Brown was in Omaha, Shephe rd and Holmes paid Brown the $2,500 he was owed. Prior to leaving town, he talked to both Shepherd and Holmes about the possibility of bringing powder cocaine to Omaha, becausethey would make more money selling crack cocaine than selling marijuana.

Two weeks later, Brown came back to Omaha, bringing nine ounces of powder cocaine with him. He stayed for two weeks in the apartment across from Fellows’. Holmes paid Brown between $7,000 a nd $8,000 for the powder cocaine. The transaction occurred at the ap artment, with both Shepherd and Cooley present. After Holmes paid Brown, Brown flew back to Los Angeles.

Brown made a third trip to Omaha sometime during the summer of 2001. On this trip, Cooley accompanied Brown, and th ey went to the same apartment in Omaha. Shepherd was there, and heand Brown cooked the cocai ne that Brown brought with him into 24 or 26 ounces of crack, which they packaged into one-ounce packages. Holmes agreed to purchase the whole am ount for $15,000. Once Brown received the full purchase amount from Holmes, he returned to Los Angeles.

Once back in Los Angeles, Brown purch ased a kilogram of powder cocaine, which he then sold to Holmes, who had driv en to California to obtain it. About two weeks later, Brown made his fourth trip to Omaha and went to the apartment across from Fellows’. Shepherd, Cooley, Holmes , and Fellows were there, and the men cooked the powder into crack. Holmes arranged to purchase the crack and sell it around Omaha, and then later paid Brown and Shepherd for it back at the apartment. Brown returned to California and arranged the acquisition of another 1.5 kilograms of powder cocaine. He again gave this to Holmes to drive back to Omaha, and Brown then later also traveled to Omaha. Brow n went to the apartment Fellows had rented, where he met up with Shepherd, Holmes, Sk annell, and Cooley. At the apartment, Shepherd and Brown cooked a kilogram of the powder into crack. Holmes took the-11- crack and sold it for Brown and Shepherd, paying them for it about two weeks later at the apartment. Brown returned to Los Angeles.

In Los Angeles, Brown bought anothe r 1.5 kilograms of powder cocaine. Brown then drove to Omaha with Noah and Scott to an apartment that Holmes had arranged for the men to use. At the ne w apartment, Brown and Straughan cooked one kilogram of the powder into crack, ag ain packaging the crack into one-ounce packages. Holmes sold th e crack for the two men, paying them $22,000 for the total amount. Brown, Noah, and Scott flew back to Los Angeles after two or three weeks in Omaha. Soon after they re turned to Los Angeles, Holmes made a trip to California to pick up another supply of powder cocaine from Brown. Brown stated that he did not make another trip to Om aha after giving the cocaine to Holmes on this occasion because he learned that Holmes, Scott, No ah, and Clark had been arrested on their way to Omaha.

In Brown's later testimony, he stated that on his fifth trip to Omaha, he and Straughan, along with Noah and Scott, went to the apartment Holmes had arranged because Brown and Shepherd had a fallin g-out over money and how to divide it between the two of them. He believed that the falling-out occurred on about his fourth trip to Fellows’ apartment complex. He did not share the proceeds with Shepherd on the later trips to Omaha.

Monique Noah testified as a Government witness. She had also been indicted and was testifying as part of a plea agreemen t. She stated she had been sentenced to 37 months of imprisonment, but that th e judge could lower her sentence. Noah testified that she knew all four of the defendants.

Noah was arrested when the police stoppe d Holmes on I-80. She testified that this trip was her third trip to Nebraska. The first trip was in September or October 2001 when she came with Cooley, Brown, Straughan, and Scott to Omaha. She-12- testified that she had a romantic relationship with Brown and met Cooley and Straughan through him, and that Danae Scott was her roommate. On this initial trip to Omaha, Noah testified that they first we nt to a hotel, where the men left the women for a few hours. Eventually Cooley cam e back and took Noah and Scott to the apartment Fellows had rented for the men. She and Scott stayed there about a week, along with Cooley, Straughan, a nd Brown. Noah testified that she was intoxicated the entire time she stayed in th e apartment and that she smoked marijuana but did not consume any crack, powder cocaine, or me thamphetamine. She claimed she was aware of her surroundings and what was going on the entire time. She stated she is familiar with both powder cocaine and crack but saw neither at th e apartment. Noah met Holmes on this trip because he came to the apartment two or three times a day. When Holmes came to the ap artment, he and Brown w ould go into the bedroom to talk, but Noah did not remember if Cooley or Straughan would join them. After a week or so, Brown told Noah it was time to leave, and Noah, Scott, Straughan, and Brown flew home. Noah purchased the tickets with money Brown had given her.

About a week or two later, Noah made her second trip to Nebraska. She and Scott drove to Omaha with Holmes and his cousin. Noah testified that Holmes had rented the van they rode in. They went to the same apartment inOmaha that they had stayed in before, but it had been completely cleaned out. Noah testified that Brown and Straughan were looking for Skannell to try to locate their furniture. They stayed in this apartment for three or four days, drinking and smoking marijuana. Holmes would make frequent visits to the apartm ent and would again go into the bedroom to talk with either Straughan or Brown. No ah did not see any powder cocaine or crack, any packing materials, or what she be lieved to be drug proceeds on this trip.

After a few days, Brown informed them that they had to leave the apartment. At this point, the group moved to an apartment about 10 minutes away, staying there about a week. Brown and Straughan had located Skannell and the missing furnishings, and they moved all the furnitu re and appliances from the old apartment-13- into the new one. Brown, Straughan, Scott, and Noah stay ed at this apartment, and Holmes continued to make frequent visits. While Noah did not see any crack or powder cocaine here, she did see money, te stifying that she saw cash in plastic bags leaning against a cabinet. Sh e stated she saw two or three bags with four stacks of cash in each, and that she saw the bags on eith er the day before or the day they left to go back to California. Noah did not know to whom the money belonged. Noah testified that although she knew Shepherd from her time living in California and had seen him there, she had not seen him on any of her trips to Nebraska.

Danae Scott also testified for the Govern ment as part of a plea agreement on the conspiracy charge. She had received a 120-month sentence and said that a judge could still reduce it. Scott knew all of the defendants, identifying them by their nicknames. She was also arrested on N ovember 5, 2001, during the I-80 traffic stop, which was Scott's third trip to Nebraska.

Scott's testimony was very similar to Noah's . She testified that her first trip to Omaha was around September 2001 when she rented a van and made the trip with Brown, Cooley, Straughan, and Noah. The trip had been arrange d by Brown. Scott echoed Noah's testimony that upon arriving in Omaha, the women were left at a hotel while the men went off, and that a while later Cooley came back and took them to an apartment, where they stayed for about a week. Scott stated that during this week she drank and smoked marijuana but not to the point where she did not remain aware of what was going on around her.

During the week they stayed in the apartment, Straughan and Brown would come and go, and other individuals would come to the apartmen t. Scott stated that the only individual she knew who visited the ap artment was Holmes, because she had met him before in California. Whenever Holm es or the other men would come to the apartment, Brown and Straughan would take th em into the bedroom to talk, and Scott was not aware of what they were discu ssing. Scott did not see powder cocaine or-14- crack at the apartment, but she did see meas uring cups, in which crack is often cooked. In fact, on a different trip, Scott had purchas ed such measuring cups at the request of Brown and Straughan. Scott also saw money in a kitchen drawer, some of it wrapped in rubber bands. She had stumbled acro ss the money looking for something in the drawer but quickly closed the drawer upon finding it because she did not want to be accused of snooping or stealing. Scott testif ied that after about a week in Omaha they flew back to Los Angeles.

Scott's second trip to Omaha was the dr ive with Holmes, his cousin, and Noah. She said that at first they went back to the same apartment and stayed there about two days, but the furniture was missing a nd Brown and Straughan were looking for Skannell because they thought he had it. During the two days they were in this apartment, Scott observed Brown and Straughan cook powder cocaine into crack. Noah was also in the apartment, but no one el se was there at this time. After a couple of days, they moved to a second apartment in Omaha where they stayed about a week. At this second apartment, Scott saw Straughan and Brown hide a bag containing an off-white substance under the dishwasher. She also stated that the same male visitors would frequently come to the second apartment, including Holmes, and that upon arriving they would go into the bedroom to talk with Brown and Straughan. Scott did not see any money in this apartment. After about a week in Omaha, Brown bought plane tickets and Scott, Noah, Brown, and Straughan flew back to California.

Scott attempted to make a third trip back to Omaha, during which she was arrested. Scott never saw Shepherd in Nebraska, although she did hear Brown and Straughan talk about him. Scott saw Cooley in the first apartment at least once on her first trip to Omaha.

The jury found all of the defendants guilty of the conspiracy charge and the district court denied their postverdict motions . Each of the defendants filed an appeal, which we have consolidated.-15- III. Pretrial Matters A. Bill of Particulars Cooley alleges that the district c ourt erred when it overruled his motion to preclude the Government from using the evid ence disclosed in its second amended bill of particulars. We review a district court's ruling regarding a bill of particulars for abuse of discretion. See United States v. Hill , 589 F.2d 1344, 1352 (8th Cir.), cert. denied , 442 U.S. 919 (1979).

"A bill of particulars serves to inform the defendant of the nature of the charge against him with sufficient preci sion to enable him to prepar e for trial, [and] to avoid or minimize the danger of surprise at trial." United States v. Hernandez , 299 F.3d 984, 989-990 (8th Cir. 2002), cert. denied , 537 U.S. 1134 (2003). It "is not to be used for discovery purposes." Hill , 589 F.2d at 1352. "A bill of particulars may be amended at any time subject to such cond itions as justice requires." Hernandez , 299 F.3d at 989; Fed. R. Crim. P. 7(f). The origin al bill of particulars was filed in this case on October 3, 2003. An am ended one was filed on May 14, 2004, and then a second amendment was filed on May 18, 2004, one day before tria l began. Cooley objected to the government's use of the information from the amended bills of particulars, but his objection was overruled by the district court.

Several of the Government's witnesses entered into their plea bargains just before the trial was to begin. As a result of these plea ag reements and the information that the alleged coconspirators then pr ovided to the Government, the Government amended the bill of particulars to reflect th e new information that would be presented at trial. In this case it was not a matte r of the Government hiding information, as Cooley alleges, but of new information becoming available when certain codefendants and others chose to cooperate with the Government rather th an proceed to trial. See United States v. Olderbak , 961 F.2d 756, 763 (8th Cir.) (no error when it was clear that Government's amendments to the bill of particulars were "nothing more than the government's attempts to more accurately reflect the evidence which it intended to-16- prove at trial"), cert. denied , 506 U.S. 959 (1992). The char ges against Cooley were made clear, and Cooley was ableto adequately prepare for trial. The district court did not abuse its discretion, and C ooley has failed to show prejudice in the district court's decision to allow the evidence. See United States v. Wessels , 12 F.3d 746, 751 (8th Cir. 1993) (appellant was fair ly and thoroughly apprised of the charges against him in the indictment and bill of particul ars and failed to show prejudice), cert. denied , 513 U.S. 831 (1994); United States v. Kiser , 948 F.2d 418, 426 (8th Cir. 1991), cert. denied , 503 U.S. 983 (1992).

B. Violation of Federal Rule of Criminal Procedure 5(a) Shepherd argues that the district court erred by finding no violation of Rule 5 of the Federal Rules of Criminal Procedure occurred. He argues a violation of Rule 5(a)(1)(A) did occur because there was a 55-day delay between his arrest and his first appearance on the charge. Ru le 5(a)(1)(A) requires that "[a] person making an arrest within the United States must take the de fendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise." Fed. R. Crim. P. 5(a)(1)(A). Prior to trial, Shepherd raised several Rule 5 issues, th at the district court carefully reviewed, finding "that Rule 5 was complied with in all respects." (Appellant Shepherd's Add. at 10.) Only the issue of the delay between arrest and initial appearance is before us on appeal.

It is undisputed that Shepherd was i ndicted in Nebraska on October 24, 2002. It is also undisputed that Shepherd's fi rst appearance on the indictment was April 30, 2003, in Los Angeles, Californi a. What is disputed is the time line of events between March 6, 2003, and Ap ril 30, 2003. Upon the filing of the indictment, an arrest warrant for Shepherd was issued in the Di strict of Nebraska on October 25, 2002. A Deputy United States Marshal signed the re turn showing the warrant as executed in Omaha, Nebraska, with the date of arrestbeing March 6, 2003. Shepherd argues that-17- because he was not brought before a magistrate until April 30, 2003, this 55-day delay between the date of arrest shown on th e warrant's return and his appearance in California was unnecessary and that his indi ctment should have been dismissed with prejudice. However, the Government conte nds on appeal that the arrest warrant was mistakenly dated by the deputy marshal, and that Shepherd was in fact not taken into federal custody on the conspiracy charge un til April 30, the day he made his first appearance. The Government points out thatit makes little sense that Shepherd would have been arrested in Omaha within the Di strict of Nebraska and then have had his first appearance in California.

The district court held that there was no violation of Rule 5. When considering a district court's ruling regarding a rule of criminal procedure, "we review the district court's legal conclusions denovo and its findings of fact for clear error." United States v. Van Horn , 296 F.3d 713, 719 (8th Cir. 2002) (internal marks omitted), cert. denied , 537 U.S. 1167 (2003).

The record surrounding when and where Sh epherd was arrested for the crime charged in the indictment is less than crys tal clear, but we conclude it is sufficient to support the district court's findings and c onclusion that no Rule 5 violation occurred. When Shepherd filed his first motion for dismissal on October 22, 2003, he claimed that he had been wrongfully extradited from California because he had never been given a copy of the "arrest warrant, summons, detainer, or request . . . ," but he made no factual assertion as to when or where he was arrested on the indictment. (Filing No. 156 in the district court's docket.)

In its order entered on October 29, 2003, setting a briefing schedule on Shepherd's motion, the district court f ound the procedural background of the case to be that:-18- On February 26, 2003, Shepard [sic] wa s charged with violating a federal term of supervised release impos ed as a result of a Colorado drug conviction. Shepard [sic] was imprisoned in Los Angeles as a result of the supervised release violation. On the basis of the instant indictment, on April 30, 2003, Shepard [sic] wa s arrested and appeared before Magistrate Judge Robert N. Block in the United States District Court for the Central District of California pur suant to Federal Rule of Criminal Procedure 40. (Filing No. 178.)

In his Brief in Support of the Motion to Dismiss filed on November 19, (Filing Nos. 183, 185) Shepherd asserted the fo llowing as his version of the "Background," which is an almost word-for-word adoption of the district court's version of the facts surrounding his arrest on the indictment:

On February 26, 2003, De fendant was charged withviolating a federal term of supervised release impos ed as a result of a Colorado drug conviction. The defendant was imprisoned in Los Angeles as a result of the supervised release violation. On the basis of the instant indictment, on April 30th , 2003, the defendant was arre sted and appeared before Magistrate Judge Block in the United States District Court for the Central District of California pursu ant to federal Rule of Criminal Procedure 40. (Filing No. 183.)

It is noteworthy that Shepherd made no cl aim in his brief that the district court had erred in its facts, and hemade no assertion that he had actually been arrested on the indictment in Omaha, Nebraska, so me weeks earlier, specifically on March 6, 2003, even though he had been furnished a c opy of the returned Ne braska warrant ten days before filing his brief. Certified copi es of the proceedings held in the Central District of California and filed in the Distri ct of Nebraska confirm that he was arrested-19- at 0700 hours on April 30, 2003, on the Nebras ka warrant and made his appearance in federal court before Ma gistrate Judge Block later that day when counsel was appointed to represent him and he was ordered to be detained.

In its order of December 19, 2003, denying Shepherd's motion to dismiss and concluding that "[a]fter careful review, th e Court finds that Rule 5 was complied with in all respects," the district court found thatthe defendant was arrested in California and appeared before Magistrate JudgeBlock on April 30, 2003, relying on the certified copies of the California proceedi ngs. (Filing No. 204.) Although the district court's order also recites th at the "warrant also reflect s that it was properly executed on Shepherd by a United States Marshal on March 6, 2003," the district court made no finding of fact concerning the veracity of that return, and the district court's specific finding that the defendant was arrest ed in California on April 30 is an implicit rejection of the warrant's return's recitati on that the defendant was arrested in Omaha on March 6, 2003. (Id. ) The copy of the Nebraska warrant used in the California proceeding on April 30, 2003, does not show it as having been previously executed in Omaha on March 6, 2003.

The fact that the defendant was invol ved in supervised release revocation proceedings in the Central District of California is confirmed by paragraph 86 of Shepherd's Presentence Investigation Re port (PSR), and the fact that he was imprisoned as a result thereof is also conf irmed by Shepherd's own statement in his district court brief. It was only after the district court denied his motion to dismiss and mentioned the conflicting dates of arrest that Shepherd first ascribed that he had been actually arrested on March 5, 2003, (not on March 6) in his renewed motion to dismiss. (Filing No. 210.) Even then he did not assert that his a lleged arrest on March 5 had occurred in Omaha or that it was b ecause of the indictment. In fact, he specifically argued that the alleged March 5 arrest was "without warrant or complaint." (Id. )-20- Even more revealing is Shepherd's brief in support of his renewed motion to dismiss. In that document, he states th at on September 6, 2002, he was arrested for possession of a firearm, and that a "United States Marshal hold" was placed on him at the same time. (Filing No. 212.) Para graph 97 of the PSR reveals that on August 6, 2002, (thirty days earlier) he had been charged in Los Angeles County Superior Court with possession of a firearm by a fel on. Hence his arrest on September 6, 2002, had to have been for the stat e charge. The United States Marshal's "hold" he alleges was placed on him the same day could not have been based upon the existence of the Nebraska warrant because that warrant was not issued until October 25, 2002, following the indictment. Shepherd's brief also states that he was already being confined in the Los Angeles County Jail on October 25, 2002. Paragraph 97 of the PSR reveals that Shepherd was acquitted by a jury of the Ca lifornia state weapons charge on February 25, 2003. Shepherd's initial district court brief (quoted supra at 18) confirmed that he was charged the very next day, Fe bruary 26, 2003, with violating his federal supervised release. In his later distri ct court brief he states that he was still being held in the Los Angele s County Jail on March 5, 2003, when he says he was arrested and taken to the Metropo litan Detention Center (a federal facility) by United States Marshals. Paragraph 86 of th e PSR discloses that his federal supervised release was revoked on April 21, 2003, and that he was sentenced to serve ten months in prison. Hence, we are of the view thatthe arrest by United States Marshals which Shepherd claims occurred on March 5, 2003, was an arrest in furtherance of the federal supervised release revocation pro ceedings then pending against him in the Central District of California and was not an arrest made pursuan t to the District of Nebraska's warrant issued for the crim e charged in the Nebraska indictment.

Given the record disclosed before us, we cannot say that the district court's finding that Shepherd's initial arrest on the indictment occurred in California on April 30, 2003, is clearly erroneous, nor can we say that the district court erred when it concluded that no Rule 5 violation occurred.-21- C. Speedy Trial Issues 1. Straughan Straughan alleges that the district court erred by not dismissing the indictment against him because the Government violat ed both the Speedy Trial Act and his Sixth Amendment right to a speedy trial. "Sixth Amendment and Speedy Trial Act challenges for delay are reviewed independ ently of one another." United States v. Sprouts , 282 F.3d 1037, 1041 (8th Cir. 2002).

"In the context of the Speedy Trial Act, we review the district court's findings of fact for clear error and the district c ourt's legal conclusions de novo." United States v. Williams , 408 F.3d 1073, 1075-76 (8th Cir. 2005). The Speedy Trial Act requires that a defendant be brought to trial within 70 days from the date of indictment or from the date he makes his first appearance befo re an officer of the court in which the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1); Sprouts , 282 F.3d at 1042. Periods of delay caused by pretrial motions, whether filed by the defendant, codefendants, or the prosecution, are excl uded from the calculation of this 70-day time frame, 18 U.S.C. § 3161(h)(1)(F); United States v. Fuller , 942 F.2d 454, 457 (8th Cir. 1991), cert. denied , 502 U.S. 914 (1991); 502 U.S. 10039 ( 1992), as are continuances granted by the court in order to best serv e "the ends of justice," § 3161(h)(8)(A).

Almost seventeen months passed betw een Straughan's arraignment in January 2003 and the beginning of the trial in May 2004. Despite this delay, the district court found that there was no Speedy Trial Act vi olation due to the numerous pretrial motions filed in this case, including the 50-plus motions that Straughan's codefendant Shepherd filed, and the fact that the time during which those motions were pending did not count against the 70 days allowed under the Act. Thus, the district court determined that the Speedy Trial Act cloc k had not run out. On appeal, Straughan's only argument as to the Speedy Trial Act is that time excluded due to the motions-22- filed by his codefendants should not toll Straughan's Speedy Trial Act clock. Straughan contends that because he did not file pretrial motions himself and cause a delay in the trial date, his clock should have continued to run. That, however, is not the law, and thus we find no error in the di strict court's calculation and determination that the Speedy Trial Act was not violated. See Fuller , 942 F.2d at 457 ("Motions filed by one defendant in a multi-defendant case count as motions filed by all the defendants, and . . . will count as ex cludable time for all defendants.").

As to the separate Sixth Amendment speedy trial claim, we have stated that "[i]t would be unusual to find the Sixth Amendm ent has been violated when the Speedy Trial Act has not." United States v. Titlbach , 339 F.3d 692, 699 (8th Cir. 2003). The Sixth Amendment right "attaches at the time of arrest or indictment, whichever comes first, and continues until the trial comme nces." United States v. Perez-Perez , 337 F.3d 990, 995 (8th Cir.), cert. denied , 540 U.S. 927 (2003). We consider a four-factor ad hoc balancing test when evaluating a Si xth Amendment claim for pretrial delay, considering such factors as: "[1] [l]ength of delay, [2] the reason for the delay, [3] the defendant's assertion of his [speedy trial] right, and [4] prejudice to the defendant." Barker v. Wingo , 407 U.S. 514, 530 (1972); Titlbach , 339 F.3d at 699. "A delay approaching a year may meet the threshold for presumptively prejudicial delay requiring application of the Barkerfactors." Titlbach , 339 F.3d at 699.

At 17 months, Straughan's delay compels us to look to the other factors in the balancing test. Barker , 407 U.S. at 530 (noting that the length of delay is a "triggering mechanism" for the inquiry into the othe r factors). Although Straughan only filed one pretrial motion, his codefendants filed over 50 motions, causing extensive delay in bringing the case to trial. We do not find the time it took to dispose of these motions to be an unreasonable intrusion on Straughan's due process rights. SeeFuller , 942 F.2d at 457. Further, there is no evidence that the Government intentionally caused any delay or filed pretrial motions to cause delay in order to gaina tactical advantage.-23- Looking to the third factor, while Straughan did file a motion to dismiss based on a speedy trial violation, he waited until the fi rst day of trial to do so. Straughan made no attempt to have his case brought to trial sooner, nor did he file a motion to sever his case from that of th e codefendants. See United States v. Brown , 325 F.3d 1032, 1035 (8th Cir.) (weighing the third factor against the defendant where the defendant did not inquire about his case or request a speedy trial), cert. denied , 539 U.S. 953 (2003).

The fourth factor, prejudice, is evaluated "in the light of the interests of defendants which the speedy trial right was de signed to protect . . . (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defe nse will be impaired . . . the most serious is the last." Barker , 407 U.S. at 532. Straughan does not allege that his defense was impaired by the delay. Rather, he claims oppressive pretrial incarceration kept him from seeing his children and caused him anxiety. Anxiety, without concurrent prejudice to the defendant's ability to mount a defense, is likely the weakest interest served. See id. at 534 (noting that "living fo r over four years under a cloud of suspicion and anxiety" was minimally prejudicial); Morris v. Wyrick , 516 F.2d 1387, 1391 (8th Cir.) ("Anxiety and concern of the accused are undoubtedly present to some degree in every case. . . [h]owever, that alone does not establish prejudice where. . . the defendant neither asserts nor shows thatthe delay weighed particularly heavily on him in specific circumstances."), cert. denied , 423 U.S. 925 (1975).

Looking at the record before us and applying the Barker test, we agree with the district court's judgment that Straughan's Si xth Amendment right to a speedy trial was not violated. That the delay was caused in large part by the filing of pretrial motions by Straughan's codefendants, that he did not assert his right prior to the day of trial, and that he did not show any impairment to his defense all weigh against the finding of a violation of the Sixth Amendment. As such, we affirm the district court's-24- judgment that there was no Speedy Trial Ac t violation or Sixth Amendment speedy trial violation as to appellant Straughan.

2. Shepherd Shepherd also claims a violation of th e Speedy Trial Act and contends that the indictment against him should have been dismissed. He argues that the 55 days between the date on the arrest warrant's return and his appearance in Los Angeles should be included in the Speedy Trial Act de termination, which, if added to the 17 days the district court determined had run, would make the first day of trial past the 70-day limit. However, the 55 days occu rred well before the date of Shepherd's arraignment in the District of Nebraska, a nd we have held that the Speedy Trial Act clearly requires that "'a federal criminal defendant must be br ought to trial within seventy days of the filing of his indictment or his arraignment, whichever is later .'" United States v. Gamboa , 439 F.3d 796, 804 (8th Cir. 2006) (emphasis added) (quoting United States v. Yerkes , 345 F.3d 558, 561 (8th Cir. 2003)); see also 18 U.S.C. § 3161(c)(1) ("the trial of a defendant ch arged in an . . . i ndictment . . . shall commence within seventy days from the filing date . . . of the . . . indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whicheve r date last occurs."). Shepherd does not otherwise challenge the district court's determination that only 17 days had run on his speedy trial clock prior to trial commencing in May 2004. His only argument is that the 55 days prior to his appearance in Los Ange les should be included in the calculation. Because we have already decided that the dist rict court's fact-finding that his arrest on the indictment occurred on April 30 (and not on March 5) is not clearly erroneous and because the alleged 55 days clearly fall outsidethe statute, they are not included in the Speedy Trial Act calculation, and Shepherd's claim fails.-25- IV. Trial Issues A. Officer Orsi's Testimony Cooley contends that the district c ourt erred when it allowed the Government to present the expert testimony of Officer Steve Orsi because the Government had not complied with the disclosure requirements of Federal Rule of Criminal Procedure 16. Rule 16 requires that upon the defendant's request, the Government must provide a written summary to the defendant of "any testimony that the government intends touse under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-inchief at trial." Fed. R. Crim. P. 16(a )(1)(G). The summary "must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Id. If the government fails to comply , the district court may order the government to disclose the evidence, grant a continuance, prohibit use of the evidence at trial, or "enter any other order that is just under the ci rcumstances." Fed. R. Crim. P. 16(d)(2).

The Government decided to call Officer Or si as a fact witness one week prior to trial. He was listed on the Government's witness list that was provided to the defense, but not on its expert witness list. While a su mmary of his testimony was not provided to the defendants in compliance w ith Rule 16, the Government did provide the defense with copies of Officer Orsi's prio r, similar trial testimony. At trial, Officer Orsi was allowed to testify as an expert regarding drug inves tigations and related activities. Cooley objected to Officer Orsi 's testimony based on both the lack of a Daubert hearing and a violation of Rule 16, but the district court overruled his objections. Only the Rule 16 violation is before us on appeal. "We review for an abuse of discretion alleged violations of Federa l Rule of Criminal Procedure 16(a)(1)(G)." United States v. Conroy , 424 F.3d 833, 838 (8th Cir. 2005).

We have previously held that it is not an abuse of a district court's discretion to permit an officer to testify as an expert, pa rticularly in narcotics cases, even if Rule-26- 16 has not been fully complied with. SeeUnited States v. Londondio , 420 F.3d 777, 788-89 (8th Cir. 2005) (holding any potential evidentiary errors to be harmless); United States v. Ortega , 150 F.3d 937, 943-44 (8th Cir. 1998) (noting "that this type of expert evidence has become almost r outine in drug cases" and finding no prejudice from the lack of Rule 16 disclosure), cert. denied , 525 U.S. 1087 (1999). In addition, we note in this case that while specifi c Rule 16 notice was not provided to the defendants, they were provided notice that Officer Orsi would be testifying and were given copies of his prior, similar testimony. Even if Cooley was unaware that Officer Orsi would be testifying in an expert capacity at trial, he was ma de aware of the nature of Officer Orsi's testimony. Cooley has failed to show any prejudice from this lack of notice. United States v. Anderson , 446 F.3d 870, 875-76 (8th Cir. 2006) ("'A claim of prejudice based on untimely disclosure is less convincing when unaccompanied by an objection to the object of that disclosure.'"), petition for cert. filed , __ U.S.L.W. __ (June 6, 2006) (No. 05-11436). We conclude that the district court did not abuse its discretion in allowing Officer Orsi to testif y as an expert witness despite the lack of Rule 16(a)(1)(G) notice.

B. Sufficiency of the Evidence Each of the four appellants challenges his conviction claiming there is insufficient evidence to support the jury's verd ict. "'This court reviews the sufficiency of the evidence de novo, viewing the eviden ce in the light most favorable to the government, with all reasonable inferences and credibility determinations made in support of the jury's verdict.'" United States v. Katz , 445 F.3d 1023, 1028 (8th Cir. 2006) (quoting United States v. Kelly , 436 F.3d 992, 996 (8th Cir. 2006)). When reviewing the evidence in conspiracy cases, we have held that while a defendant may be convicted for even a minor role in a conspiracy, "the gov ernment must offer enough evidence to prove a defendant's connection to a conspiracy beyond a reasonable doubt before a conspiracy convi ction can be upheld." United States v. Lopez , 443 F.3d 1026, 1028 (8th Cir. 2006) (en banc), petition for cert. filed , __-27- U.S.L.W. __ (July 5, 2006) (No. 06-5151). Evidence to prove participation in a conspiracy may be either direct or circumstantial, and we will affirm if the record "contains substantial evidence supporting th e jury's verdict, which means evidence sufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 1030. Having discussed the trial evidence in great detail supra , we will not repeat it here. We hold that there is suffi cient evidence to support the conspiracy conviction of each appellant.

In order to convict on a conspiracy ch arge, the Government must prove that each defendant "(1) had an agreement to achieve an illegal purpos e, (2) knew of the agreement, and (3) knowingly became part of the agreement." United States v. Wintermute , 443 F.3d 993, 1003 (8th Cir. 2006). Th ere need not be "direct evidence of an explicit agreement" be tween the coconspirators, "a 'tacit-understanding' . . . may be, and often will be, inferred fro m circumstantial evidence." Id.

All four appellants challenge the suffi ciency of the evidence on appeal by arguing that a number of the witnesses w ho testified against them had credibility problems, and thus their testimony should not be considered. However, the fact that certain witnesses had plea agreements with the government and were hoping to receive reduced sentences based on their cooperation were facts the jury was made aware of and could consider when weighi ng their testimony. "[W]e are obliged to defer to the jury's determination of the credibility of the witnesses," Lopez , 443 F.3d at 1031, and we will not second-guess the ju ry's credibility determination of the Government's witnesses in this case, see United States v. Vinton , 429 F.3d 811, 817 (8th Cir. 2005) ("Testimony is not unreliable as a matter of law ju st because a witness is a co-conspirator or a cooperating witness[]."); United States v Drapeau , 414 F.3d 869, 877 (8th Cir. 2005) ("'Testimony does not become legally insubstantial because the witness stands to gain by lying; the defendant is entitled to cross-examine such witnesses to expose their motivations, and it is up to the jury to decide whether the-28- witness is telling the truth despite incentives to lie.'"), cert. denied , 126 S. Ct. 1090 (2006); United States v. Payne , 940 F.2d 286, 291 (8th Cir. 1991) ("The existence and contents of . . . [a] plea agr eement were precisely the sort of thing that affected the weight of [the] testimony, not its admi ssibility, and furthermore provided abundant material for impeachment and cross-examination."), cert. denied , 502 U.S. 994 (1991); 503 U.S. 972 (1992).

Construing any credibility challenges in th e light most favorable to the verdict, Vinton , 429 F.3d at 815, we conclude that the evidence against Shepherd was more than sufficient to support the conspiracy conviction. Multiple witnesses testified regarding Shepherd's role in arranging a location to cook cocaine into crack, participating in cooks on multiple occasions , arranging for the sale of the drugs, and taking a share of the proceeds of those sales. This, in addition to the other evidence presented at trial, provided ample evid ence for a jury to find beyond a reasonable doubt that Shepherd was guilty of participating in a conspiracy to distribute cocaine base.

Straughan's conspiracy conviction is also sufficiently supported by the evidence. Witnesses testifie d that Straughan was part of the group that transported powder cocaine from California to Omaha, th at he participated in cooking cocaine on multiple occasions, that he helped arrange to have certain amounts of the crack sold that he had helped to cook, and that he made requests for drug-making supplies to be purchased. That evidence is more than su fficient for a reasonable jury to find that Straughan was guilty on the conspiracy charge.

In addition to the witness credibility argument, Skannell also argues on appeal that the Government failed to show that he was anything more than a bystander at the apartment while drug activities may have b een occurring, and that mere presence is not enough to support his cons piracy conviction. See United States v. Rodriguez , 414-29- F.3d 837, 845 (8th Cir. 2005) (recognizing th at "mere presence at the scene of a crime" does not establish participation in a conspiracy). However, looking at the evidence against Skannell as a whole, and th e inferences it generates, the evidence is sufficient to support the jury's verdict. Specifically, there was testimony that Skannell participated in multiple cocaine cooks, thathe did at least one cook on his own, that he accepted crack in exchange for doing a cook, and that he was observed giving money to Shepherd on multiple occasions. There was sufficient evidence to show that Skannell was aware that the conspiracy ex isted and that he wa s a knowing and active participant in the drug activitie s and the conspiracy, not just a mere bystander. See id. (rejecting claim of mere presence base d on testimony of coconspirators).

The evidence against Cooley supports his conviction as well. Witnesses testified that not only was he present inthe various apartments while the drug activities were occurring, but that he de livered packages which the jury could reasonably infer contained drugs to Shephe rd multiple times, that he passed money to Shepherd, that he helped with cocaine cooks and went along to purchase supplies for these cooks, that he paid rent for one of the apartments in which the coconspirators conducted the drug transactions and cooked the crack, that he traveled with the coconspirators who transported the cocaine between California and Omaha, and that on at least one occasion he gave several ounc es of crack to Holmes to sell. The evidence before the jury was sufficient for it to find beyond a reasonable doubt that the Government had met its burden in estab lishing the conspiracy elements as to Mr. Cooley.

We find that the evidence was sufficient for the jury to convict, and we affirm the conspiracy convictions as to all four appellants.-30- C. Jury Instructions Shepherd argues that the district court erred when it failed to instruct the jury on the law applicable to withdrawal from a c onspiracy. Shepherd concedes that he did not object to the instructions given to the jury at submission and that he did not ask for such an instruction. Nonetheless, he c ontends that it was plain error for the district court to fail to give the w ithdrawal instruction. See United States v. Tobacco , 428 F.3d 1148, 1150 (8th Cir. 2005) (standard of review). We respectfully disagree.

"In order to withdraw from a conspiracy , a defendant 'must demonstrate that he took affirmative action to withdraw from the conspiracy by making a clean breast to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his coconspirators.'" United States v. Jackson , 345 F.3d 638, 648 (8th Cir. 2003) (quoting United States v. Zimmer , 299 F.3d 710, 718 (8th Cir. 2002)). Simply ceasing to be an active partic ipant in the conduct of the conspiracy alone is not enough to establish a withdrawal from the conspiracy. Id.

Shepherd never went to the police regarding the conspiracy, and there is no indication that he voluntarily ceased his activ ities with the group. While there appears to have been a falling out among some of the coconspirators and this may have changed or reduced Shepherd's role, that itself does not establish that Shepherd took any affirmative steps to voluntarily withdr aw himself from the conspiracy and then clearly communicated that fact to his coconspirators. Seeid. at 648-49 (affirming district court's refusal of an instruction on withdrawal from a conspiracy where the evidence established only that the conspi rators had a falling out). A withdrawal instruction was not warranted, and the district court did not err in failing to instruct sua sponte on withdrawal.-31- D. Exclusion of Evidence Skannell argues that the district court erred when it excluded specific evidence and testimony from being used to attack Holmes’ credibility. Specifically, Skannell refers to a 2004 Omaha World-Herald article , which the district court prevented the defense from introducing into evidence or disc ussing during the trial. "'We review the district court's evidentiary rulings for abuse of discretion.'" Katz , 445 F.3d at 1031-32 (quoting Urbina , 431 F.3d 305, 311 (8th Cir. 2005)).

The article in question referred to a st ate homicide trial in which Holmes was a witness and was cooperating with the state. (Appellant Skannell' s Add. at 9.) The article quoted police investigators, who stated that Holmes had provided information about a homicide to the state, hoping to have his federal se ntence reduced. (Id. ) Skannell's intent was to use the article to attack Holmes’ credibility and to show that he "lied about the reason for hi s cooperation . . . and that he 's also testifying in order to get a shorter jail sentence." (Trial Tr . at 1019.) The jury was already well aware of the fact that Holmes was testifying pur suant to a plea agreem ent and with the hope of receiving a sentence reduction because of his cooperation. Th e article involved a separate state homicide case that did not pertain to the case at hand and would not have provided new informati on regarding Holmes’ motivation for testifying. The district court did not abuse its discreti on by sustaining the Government's objection to the admission of the article, where the evid ence was at most cumulative of other evidence before the jury. See United States v. Gianakos , 415 F.3d 912, 914 (8th Cir) (affirming exclusion of cumulative evidence), cert. denied , 126 S. Ct. 764 (2005).

V. Post-Trial Issues A. Motion for New Trial/Brady Violation Straughan and Skannell both contend that the Government withheld information from them in violation of Brady v. Maryland , 373 U.S. 83 (1963), and that the district court should have granted them a new tria l based on this newly-discovered evidence. The Brady claim is based upon Holmes’ tes timony in August 2004 (more than two-32- months after the trial in this federal case) in a state homicide trial for the murder of Demond Briggs. Holmes testified as a pr osecution witness about his own involvement in the Briggs murder and about his involve ment with the accused. Straughan filed a motion for a new trial postsente ncing, which the district c ourt denied. Skannell raises the Brady claim for the first time on appeal. "We review the district court's denial of [Straughan's preserved] motion fo r a new trial based on a Brady claim for an abuse of discretion," United States v. Gary , 341 F.3d 829, 832 (8th Cir. 2003) (internal marks omitted), cert. denied , 540 U.S. 1139 (2004), and Skannell's claim for plain error, United States v. Rouse , 410 F.3d 1005, 1010 (8th Cir. 2005).

"To prove a Brady violation, a defendant must show that the prosecution suppressed the evidence, the evidence was favorable to th e accused, and the evidence was material to the issue of guilt orpunishment." United States v. Duke , 50 F.3d 571, 577 (8th Cir.), cert. denied , 516 U.S. 885 (1995). This includes both impeachment and exculpatory evidence. Evidence is c onsidered material "'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)). If the "convicti on was obtained through the prosecution's knowing use of perjured testimony," then the standard is slightly different and the conviction "'must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Id. (quoting United States v. Agurs , 427 U.S. 97, 103 (1976)).

During Holmes’ cross-examination in the instant drug trial, the following exchange occurred between Holmes and Skannell's counsel:

Q: Is it true you're also facing other possible charges right now? A: No. Q: You're not aware of any potentia l murder charges that you may be a witness in?-33- A: A witness but not facing. Q: Okay. So there's apparently to your knowledge a case out there dealing with a murder of somebody that you may be – have some information or knowledge about? A: Yes. Q: Okay. Has the government talked to you about this case? A: No. (Trial Tr. at 284.)

Straughan and Skannell claim that by a llowing Holmes to testify that the Government had not discussed the Brig gs homicide with him, the Government allowed Holmes to commit perjury, because in his later testimony at the Briggs trial, Holmes testified that he had spoken to the federal government about a homicide. (Appellant Straughan's Add. at 16.) However, a readi ng of Holmes’ testimony from both trials convinces us that Holmes was talking about tw o different homicide investigations, the Briggs homicide and one that occurred in an apartment on Maple Street, and thus there was no perjury and no Brady violation. When Holmes testified at the federal drug trial, hewas asked about the Briggs state homicide case in which he was involved as a witness. There are no records that indicate that at any time he spoke with anyone from the fe deral government about the Br iggs homicide. In fact, he did not contact state authorities with hi s information about the Briggs murder until after his plea agreement with the Government on the drug charges was in place. Prior to that time, while making his proffer about the drug conspiracy, Holmes made a statement to the FBI about the Maple Str eet homicide, but it was not a homicide in which he was later consideredto be a witness because hewas incarcerated at the time the Maple Street homicide occurred. Atthe time of his testimony in the case on appeal here, Holmes was referring to th e Briggs homicide case in which he was scheduled to testify and in which he was cooperating with state authorities, not the Maple Street murder that he spoke with fe deral agents about at his proffer interview.-34- Thus, we conclude he did not commit perjury when he stat ed that the Government had not spoken with him about the Briggs homicide.

Straughan and Skannell further allege that even if there was no perjury, it was a Brady violation for the Government not to di sclose to the defense that Holmes was involved in a homicide investigation, specifi cally claiming that the details of Holmes’ involvement in the Briggs murder, which Ho lmes testified to after the federal trial, should have been disclosed. The defense was aware prior to tr ial that Holmes was somehow involved in the Briggs homicide i nvestigation. There is no indication that the Government was aware of the details a nd extent of Holmes’ involvement in the Briggs homicide until the time he testifie d in the state trial, and "[a]ny knowledge gained by the prosecution after the trial is irrelevant to a Brady claim." Rouse , 410 F.3d at 1010.

No Brady violation occurred. As such, both Straughan's and Skannell's claims fail and the district court did not abuse its discretion in denying Straughan's motion for new trial.

B. Motion for New Trial/Miscarriage of Justice Cooley contends that the district court erred when it denied his motion for a new trial without granting him an evidenti ary hearing. "We w ill reverse a district court's denial of a motion for a new trial onl y if the court clearly abused its discretion such that a serious miscarriag e of justice may have occurre d." United States v. Ryder , 414 F.3d 908, 915 (8th Cir. 2005). "The district court has broad discretion in deciding whether to hold a hearing," and generally hearings are only held when exceptional circumstances exist. United States v. Provost , 921 F.2d 163, 164 (8th Cir. 1990), cert. denied , 499 U.S. 968 (1991). Cooley's argumen ts for a new tria l are simply a cumulative summary of the argum ents he has raised earlier in this appeal. We have already addressed those arguments supra , and because none of th em has any merit, we conclude that the district court did not abuse its discretion in denying Cooley's motion2 Blakely v. Washington , 542 U.S. 296 (2004).

3 United States v. Booker , 543 U.S. 220 (2005).

-35- for a new trial without holding an evidentiary hearing. See United States v. Rice , 449 F.3d 887, 893-94 (8th Cir. 2006).

VI. Sentencing Issues A. Skannell Skannell was sentenced by the district court to 360 months of imprisonment. He was sentenced post-Blakely 2but pre-Booker 3 and preserved a Blakely claim. On appeal, Skannell specifically challenges th e district court's calculation of drug quantity, its failure to grant him a downwar d departure, its failure to grant him a reduction for acceptance of responsibility, and its finding that he was a career offender under § 4B1.1 of the United States Sentencing Guidelines (USSG).

We begin with Skannell's challenge to th e district court's finding that he was a career offender for purposes of USSG § 4B1.1. He is a career offender for sentencing purposes if: (1) he was at least eighteen years old when he committed the instant offense, (2) the instant offense is a felony controlled substance offe nse, and (3) he has at least two prior felony convictions that were crimes of violence or controlled substance offenses. USSG § 4B1.1(a). Skannell does not quarrel with the validity of his prior felony offenses, but argues only th at the district court violated Booker when it made its own fact-findings that his prior c onvictions satisfied § 4B1.1. As we have recognized several times, however, Booker did not change the fact that the existence vel non of prior felony convictions are matters for the district court to determine, not fact issues for the jury. See United States v. Levering , 431 F.3d 289, 295 (8th Cir. 2005) ("Almendarez-Torres is still good law, which we will continue to follow until the Supreme Court instructs otherwise."), cert. denied , 126 S. Ct. 2366 (2006). Under the post-Bookerregime, the district court properly considered Skannell's prior offenses and found him to be a career offender under § 4B1.1.4 The district court violated Bookeronly because the district court understandably applied the Guid elines as mandatory (which they were at that time). Had the district court had the benefit of Bookerand applied the Guidelines as advisory, the district court would have committed no error in making its own drug quantity findings by a prepondera nce of the evidence. See United States v. Pirani , 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert. denied126 S. Ct. 266 (2005).

-36- The career offender Guideline requires th e district court to make a separate offense level calculation based on the statutory maximum sentence for the offense of conviction and to use that o ffense level if it is higher than the otherwise applicable offense level. "A career offender's crimin al history category in every case under this subsection shall be Category VI ." USSG § 4B1.1(b). Before proceeding to apply the career offender Guideline, the district c ourt had determined that Skannell's total offense level, based on drug quantity and various other e nhancements, was a level 28. The jury had returned its verdict formfinding that the amount of crack cocaine involved in the conspiracy was 50 grams or more. Pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), that jury finding exposed Skannell to a statutory sentencing range of not less than ten years and a maximum of life in prison. Accordingly, with a statutory maximum of life in prison, Ska nnell's career offender offense level becomes a level 37. USSG § 4B1.1(b)(A). Thus, the district court properly used the career offender Guideline to calculate Skannell's Guidelines range because that Guideline resulted in a higher offense level, and the resulting 360 months to life Guidelines range is correct for a Level 37, Category VI offender.

Although the district court violated Booker , Skannell's challenge is rendered moot by the requirements of § 4B1.1 to apply the hi gher offense level under that section. 4 Because the judge's quantity and enhancement findings were trumped by the career offender Guideline, the district court did not violate Skannell's Sixth Amendment rights in sentencing him based on an offense level of 37 with a criminal history category of VI under USSG § 4B1.1.-37- The Sentencing Guidelines allow a re duction in offense level for acceptance of responsibility even after a finding that a defendant is a career offender. See USSG §§ 3E1.1; 4B1.1. "This [c]ourt gives great deference to the di strict court's denial of a request for a reduction for acceptance of re sponsibility and reviews the decision for clear error." United States v. Long Soldier , 431 F.3d 1120, 1122 (8th Cir. 2005). While Skannell claims that he was entitled to a three-level reduction in his Guidelines offense level of 37 for acceptance of respons ibility, there was no error in the district court's rejection of his claim. Despite th e last-minute plea negotiations that occurred between Skannell and the Gove rnment, Skannell ultimately c hose to proceed to trial on the merits of the case and allow the jury to determine his guilt. In addition, the court noted that Skannell waited until the eve of trial to approach the Government about a possible plea agreement rather than to accept responsibility in the long, pretrial time period, which would havepreserved both government and court resources. Skannell has provided no basis to support his claim that the district court's decision was clearly erroneous.

Finally, the district court specifically recognized its ability to depart based on an overstated criminal hist ory under USSG § 4A1.3 but chose not to do so. This decision is unreviewable pursuant to 18 U.S.C. § 3742. United States v. Morell , 429 F.3d 1161, 1164 (8th Cir. 2005).

Skannell further argues that the districtcourt erred in considering his prior convictions because the Government failed to file an Information pursuant to 21 U.S.C. § 851. Section 851 was enacted to ensure that defendants received notice before the statutory minimum sentence th ey could receive was enhanced based upon their prior convictions. United States v. Auman , 920 F.2d 495, 497 (8th Cir. 1990). Skannell's mandatory minimum sentence of ten years was not enhanced based upon his prior convictions (it was set by the ju ry's quantity determination), and "[i]n 'situations in which the defendant is a ssigned a guideline base offense level and receives an increased sentence, which is within a statut ory range[,]' Section 851 has-38- no application." Id. (quoting United States v. Wallace , 895 F.2d 487, 490 (8th Cir. 1990)). Because Skannell's se ntence was determined by the career offender Guideline and it fell within the maximum statutory range of life in prison, § 851 has no application to his sentencing, and the district court could dete rmine the existence of his prior convictions for career offende r Guideline purposes unencumbered by the procedural requirements of § 851.

As noted supra , although the district court calcu lated the proper career offender Guidelines sentencing range, acting pre-Booker , it understandably applied the Guidelines as mandatory. Skannell pr eserved this issue by making a Blakely argument in the district court, which require s that we review for harmless error. See Pirani , 406 F.3d at 549. The districtcourt rejected the Blakely challenge and applied the Guidelines as mandatory. Because the district court's only Booker error was the mandatory application of the Guidelin es, the error was not of constitutional magnitude, and the government bears the burden of establishing that the error did not substantially influence the outcome of th e proceedings. United States v. Olthoff, 437 F.3d 729, 732 (8th Cir. 2006). In other word s, the government must prove that the district court would have imposed the same sentence if it had treated the Guidelines as advisory.

The district court sentenced Skannell to 360 months of imprisonment, the bottom of the applicable range. Bookerrequires the district court to treat the Guidelines as advisory, and to consider all of the relevant sentencing factors contained in 18 U.S.C. § 3553(a). Although the districtcourt denied Skannell's motion for a downward departure based on an overstated criminal history, that says nothing about what the district court would have donehad it considered all of the § 3553(a) sentencing factors while treating the Guide lines as advisory. "We cannot determine on the record before us that it was harmle ss error for the district court to sentence [Skannell] under a mandatory guidelines sc heme." United States v. Mendoza-Mesa , 421 F.3d 671, 673 (8th Cir. 2005). Accordingl y, we must vacate Skannell's sentence-39- and remand for rese ntencing under Booker , using the career offender 360 to life range as the correctly determined advisory Guidelines range.

B. Shepherd Shepherd was also sentenced post-Blakely but pre-Booker and preserved a Blakely challenge at sentencing. The districtcourt determined that Shepherd was a career offender under § 4B1.1. Shepherd cl aims error in the district court's drug quantity finding, its determination that he was a career offender, its determination of his criminal history, and its imposition of an enhancement for being a leader or organizer. Based on the district court's drug quantity findings and the other Guidelines enhancements, the district court determined a total o ffense level of 41 and a criminal history category of VI, resulti ng in a Guidelines range of 360 to life.

Like Skannell, Shepherd ch allenges the district court's finding that he was a career offender on the sole basis that the prior felony convictions should have been found by the jury under Booker . We reject his challenge for the same reasons we rejected Skannell's challengeabove, and we affirm the district court's finding that Shepherd was a career o ffender under USSG § 4B1.1.

Unlike Skannell, the district c ourt's career offender finding does not moot Shepherd's challenge to the district court' s drug quantity findings or its application of a role-in-the-offense enhancem ent. The district court de termined an offense level of 41 based on the drug quantity and other enhancements, which was higher than the career offender level of 37 determined under § 4B1.1. Thus, the district court's drug quantity and role findings were not mootedby § 4B1.1, which se ts a level 37 only if the otherwise applicable offense level is lower than a 37. The government concedes that the district court's drug quantity findi ngs, coupled with the mandatory application of the guidelines, violated Shepherd's Sixth Amendment rights under Booker

. (Appellee's Br. at 79.) Because the error wa s constitutional, the government bears the higher burden of establishing that the error was harmless beyond a reasonable doubt.-40- See Mendoza-Mesa , 421 F.3d at 673. The government cannot meet its burden on this record. Shepherd received a sentence at the bottom of th e applicable range, and the district court made no other remarks th at convince us beyond a reasonable doubt that had it known that it could impose a non-Guid elines sentence based on the factors contained in § 3553(a), it would have imposed the same sentence.

Accordingly, Shepherd's sentence is vacated and the case is remanded for resentencing. On remand, the district c ourt's career offender finding stands resulting in an offense level of 37, as does its use of a Criminal History Category of VI, which results in a correct advisory Guidelines range of 360 to life unde r the career offender Guideline. See United States v. Brown , 408 F.3d 1049, 1052 (8th Cir. 2005) ("Because classification as a career offender au tomatically results in a criminal history classification of Category VI . . . we will not consider whether errors were made in calculating [the defendant's] criminal hist ory points."); United States v. Alvarez , 254 F.3d 725, 728 (8th Cir. 2001) (using criminal history category of VI based on finding that defendant was a career offender evenif higher offense level was used than minimum set by career offender status); USSG§ 4B1.1(b). If the district court finds it necessary to do a non-career offender base d advisory Guidelines calculation, the district court may make its other senten cing findings based on a preponderance of the evidence. See United States v. Thorpe , 447 F.3d 565, 569 (8th Cir. 2006). We note in passing that the career offe nder based advisory Guidelin es range, and the range the district court initially determined usi ng a drug quantity dete rmination and other Guidelines based adjustments, both ultimatel y result in the identical Guidelines range of 360 months of imprisonment to life.

C. Cooley Cooley was sentenced post-Blakely but pre-Booker by the district court to life in prison. He raises a pro se Booker challenge to the district court's finding that he was a career offender. BecauseCooley made a Blakely objection prior to sentencing,-41- his objection was preserved fo r appeal. However, Booker does not apply in Cooley's situation because Cooley was not sentencedpursuant to the Guidelines. Cooley's sentence was determined by the mandatory sentence set forth by statute based upon his prior felony convictions and the jury 's finding beyond a reasonable doubt that the conspiracy involved 50 or more grams of cocaine base. See21 U.S.C. § 841(b)(1)(A)(iii) (setting mandatory sentence at life in prison for 50 gram offender with two prior felony drug convictions); Levering , 431 F.3d at 295; United States v. Vieth , 397 F.3d 615, 620 (8th Cir.), cert. denied , 125 S. Ct. 2560 (2005). Because it was proper for the district court alone to make the factual dete rminations regarding Cooley's prior felonies and his sentence was mandated by statute, there was no Booker error, and the sentence is affirmed.

D. Straughan Straughan was sentenced post-Booker to 360 months of imprisonment. He preserved his Booker challenge at sentencing and raises it again on appeal, arguing that his sentence was unreasonable and that the district court failed to properly consider the factors under 18 U.S.C. § 3553( a). He makes no challenge to the calculation of the applicable advisory Guid elines range of 360 years to life. "We review the reasonableness of a sentence for an abuse of di scretion," and we have held that sentences within the Sentencing Guide lines are presumptivel y reasonable. United States v. Vasquez , 433 F.3d 666, 670 (8th Cir. 2005), petition for cert. filed , __ U.S.L.W. __ (Apr. 11, 2006) (No. 05-10381). However, a presumptively reasonable sentence may still be found unreasonable "if th e sentencing court: (1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment." Id. at 671.

Nothing indicates that the district court based Straughan's sentence on an "improper or irrelevant factor," or "faile d to consider a rele vant factor." See id. Instead, the district court recognized its right under Booker to sentence outside the-42- Guidelines, determined the proper, appli cable advisory Guidelines range, chose a sentence at the low end of that range, a nd then justified that sentence by specific reference to the § 3553(a) factors. See United States v. Cadenas , 445 F.3d 1091, 1095 (8th Cir. 2006) ("While not making explicit findings with respect to each, the record reflects that the district court recognized its obligation to consider the § 3553(a) factors and did actually consider them indetermining the appropriate sentence."); United States v. Dieken , 432 F.3d 906, 909 (8th Cir. 2006) (holding that the district court is required to fully consider the § 3553(a) factors when determining sentence, but need not "categorically re hearse each . . . on the record . . . as long as it is clear that they were considered"), petitionfor cert. filed , __ U.S.L.W. __ (June 15, 2006) (No. 05-11598). Straughan has failed to rebut the presumption of reasonableness that attaches to a sentence imposed post-Booker that is within the Guidelines range, and we affirm the district court's judgment as to Straughan.

VII. Conclusion Accordingly, we affirm each appellant's conspiracy convic tion, and we affirm the judgments of the district court with respect to appellants Cooley and Straughan. We vacate the sentences of Shepherd a nd Skannell and remand their cases to the district court for resentencing in accordance with Booker and this opinion.

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