United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-2325

_____________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Nebraska. Herbert Lee Bass, Jr., * * Defendant - Appellant. *

_____________ No. 96-2879

_____________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Nebraska. Todd Wakefield, also known as * T-Dub, * * Defendant - Appellant. *

_____________ Submitted: March 12, 1997 Filed: August 11, 1997

_____________-2-

Before McM ILLIAN, FLOYD R. GIBSON, and JOHN R. GIBSON, Circuit Judges.

_____________ FLOYD R. GIBSON, Circuit Judge.
Herbert Lee Bass and Todd Wakefield were adjudicated guilty of violating 21 U.S.C. §§ 841(a)(1), 846 (1994), by conspi ring to distribute and possess with intent to distribut e at least fifty grams of crack cocaine. In these appeals, Bass challenge s numerous aspects of his conviction and senten ce. Wakefield, on the other hand, raises
a single a rgument that the district court abused its discretion by imposing specia l conditi ons of supervised release which absolutely prohibit him from obtaining o r consuming alcohol, subject him to testing to dete ct the presence of alcohol in his body, and r equire him to submit to warrantless searches for alcohol. We affirm Bass' s conviction and sentence in all respects, but we vacate portions of Wakefield's sentence and remand for proceedings consistent with this opinion.

I. BACKGROUND
On June 14, 1995, a federal grand jury returned a one count indictment charging Bass and Wakef

ield with conspiring to distribute and possess with intent to distribute crack cocai ne, a violation of 21 U.S.C. §§ 841(a)(1), 846. Both men initially entered pleas of n ot guilty, but Wakefield subsequently changed his plea to guilty pursuant to an agreement he reached with the Govern ment. Bass proceeded to trial, and after four days of testimony a jury convicted him of the drug distribution crime. The district court senten ced Bass to 188 months (fifteen years, eight months) imprisonment, whil e Wakefieldreceived a period of confinement to span 135 months (eleven years, three month s). Upon release from prison, each will serve an additional five years o n supervised release.

At the pr esent time, Bass contends that the Government did not introduc e sufficient evidence to sustain his conviction. He also complains about certain-3-

evi dentiary rulings, claiming that the district court abused its discretion when it (1 ) pe rmitted the Government to implicate Bass in what he contends were other criminal schemes, and (2) exposed the jury to inadmissible hearsay by allowing a prosecution witness to t estify about out of court statements made by one of Bass's allege d coconspirators. In challenging his sentence, Bass asserts that the district cour t commi tted error when it refused his request for a downward departure to hel p ameliorate the 100-to-1 ratio between penalties for crack and powder cocaine. Finally, Wake field

maintains that the district court wrongfully levied special conditions o f
su pervisedrelease which are crafted to ensure that he totally abstains from alcoho l usage. We address these allegations seriatim

.
II. DISCUSSION

A. Bass

Bass assails his conviction and sentence on a number of grounds, but we need not tarry long on any of his contentions. For none of Bass's arguments has more than a mere modicum of merit.

1. Sufficiency of the evidence

Bass propounds that the Government did not present sufficient evidence t o support his conviction. "In reviewing the sufficiency of the evide nce to support a guilty verdict, we look at the evidence in the light m ost favorable to the verdict and accept as establishedall reasonable inferences supporting the verdict." United States v. Black Cloud , 101 F.3d 1258, 1263 (8th Cir. 1 996). From this perspective, we must consider whether " any

rational trier of fact could have found the essential elements of the crime beyond a re asonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (1979). A n affirmative answer to this inquiry precludes reversal of the conviction.The other conspirator who appeared at trial, Anthony Br anch, offered testimony 1 which at best could be viewed as marginally beneficial to the prosecution. -4- To pre vail in a conspiracy trial, the Government must prove "that there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement,
a n d that the defendant knowingly became a part of the conspiracy." United States v. Ivey , 915 F.2d 380, 384 (8th Cir. 1990)(citation omitted). The agreement which lies atthe heart of any conspiracy case need not, of course, be expressly stated. Instead, the Government must "only establish a tacit understanding betwee n the parties, and this may be shown wholly through the circumstantial evidence of [ the defendant's] actions." United Sta

tes v. Fregoso , 60 F.3d 1314, 1325 (8th Cir. 1995). "Once a conspiracy is esta blished, even slight evidence connecting a defendant to the conspiracy may b e sufficient to prove the defendant's involvement." Ivey , 915 F.2d at 384.
Having reviewed the record and read the entire trial transcript, we conclude that the Government introduced ample, if not abundant, evidence of Bass's guilt. Five o f Bass's co conspirators testified against him. Two of these individuals, Santanu s Chambers and Terry Glen Ford, confirmed that they sold to Bass large quantities o f cocain e over an extended period of time. Two street level dealers, Antonio Nelso n 1 and Dale Giles, verified that they regularly purchased from Bass crack cocaine fo r fu rther distribution. In addition, during trial the Government played a number o f recorded phone conversations between Ford and Bass, and Ford deciphered for the jury the "code" the men used in an attempt to surreptitio usly discuss their drug transactions. The re can be no question that this and other evidence provided an adequat e found ation to sustain the jury's finding of guilt. Bass's protestations to the contrary co nsist predominately of attacks on the credibility of his former compatriots wh o testifie d at trial, each of whom had reached a plea agreement with the Government

. While info rmation such as this is "highly relevant in assessing the credibility of th e witnesse s," United States v. Cabrera , No. 96-3972, 1997 WL 367310, at *2 (8th Cir.-5-

July 7, 1997), ev aluating the comparative trustworthiness of testimony is an endeavor for the jury, and not us, to undertake, see United States v. Wright , No. 96-2978, 1997 WL 377833, at *3 (8th Cir. July 10, 1997)("[I]t is the sole province of the jury to weigh the credibility of a witness." (quotation omitted)). Bass's able tria l attorney seized upon every available opportunity to point out to the jury that individual prose cution witnesses might have harbored a self-interested motivation to bolster the Government's case

. That the jury rejected defense counsel's overtures, choosing rather to credit the disputed testimony, is not for us to review.

Bass also emphasizes that he was gainfully employed during the time of th e conspiracy and that police officers did not confiscate any d rugs or large sums of money from his person or belongings. Nonetheless, though lack of employment and th e presence of drug s or large amounts of cash often serve to strengthen an inference that a defendant was dealin g in contraband, the absence of any one, or all, of these factors in a given trial does not by any means necessitate an acquittal. Stated simply, the fact that the case against Bass mig ht have been more ironclad does nothing to diminish the eviden ce which the Government did, in fact, introduce. Bass no doubt would hav e benefi tted had the jury deemed the Government's case irreparably suspect due to a deart h of circumstantial evidence connecting him to drug transactions, but the jury' s failure to live up to Bass's wishful thinking does not represent a constitutional violation. See Wri ght , 1997 WL 377833, at *3 (mentioning that conviction only upon proo f beyond a reasonable doubt is required by the Due Process Clause of the Constitution).

Inthe final analysis, Bass's multifaceted criticism of the case against him must succumb to the fact that the quantum of evidence introduced at trial, th ough perhaps not of the hi ghest caliber, was more than sufficient to allow the jury to return a guilt y ver dict. We cannot say "that a reasonable fact-finder must have entertained a reaso nable doubt about the government's proof of one of the offense's essentia l elements," Ivey , 915 F.2d at 383, and we must therefore affirm his conviction.-6- 2. "Other crimes" evidence

Bass asserts that the district court abused its discretion when it allowed th e Government to elic it testimony from Santanus Chambers concerning certain narcotics transactions Bass had entered into with him. In a related vein, Bass insists that th e cou rt committed error when it permitted the introduction of a recorded telephon e co nversation in which he discussed a drug deal with Ford. According to Bass, th e admission of this evidence ran afoul of Rule 404(b) of the Federal Rules of Evidence, because through its introduction the prosecution intended to demonstrate that he had committed other crimes and was thus prone to engage in t he criminal offense contained in the indictment.

Were Bass's characterization of the matter correct, this ground for reversa l would, if nothing else, give us pause. It is axiomatic that "Rule 404(b) exclude s evidence of other crimes or bad acts when offered to prove character in order to show action in conformity therewith." United States v. Falls , No. 96-2491, 1997 W L 3523 14, at *2 (8th Cir. June 27, 1997); see also Fed. R. Evid. 404(b). This type o f evi dence is, however, "admissible for other purposes, such as proof of motive , oppor tunity, intent, preparation, plan, knowledge, identity, or absence of mistake o r accident ." Fed. R. Evid. 404(b). Even then, the district court should approv e introduction of a defendant's other crimes or bad acts only if (1) the ev idence is relevant to a material issue, (2) the other crime or bad act is reasonablysimilar in kind and close in time to the crime charged, (3) the evidence i s sufficient to support a jury finding that the defendant committed

the other crime or bad act, and (4) the probative value of the evid ence outweighs its prejudicial effect. See United States v. Emmanuel , 112 F.3 d 977, 981 (8th Cir. 1997).

As it happens, though, we need not apply the legal doctrines developed unde r Rule 404(b). This is because our insp ection of the record has revealed that the district court did not view the evidence as representative of other crimes or bad acts, butEvenif the district court had abused its discretion, the error would have been 2 harml ess in light of other evidence establishing Bass's guilt. See Fed. R. Crim. P

. 52(a); Falls , 1997 WL 352314, at *2 ("An evidentiary error amounts to harmless error if, af ter viewing the entire record, we are convinced that no substantial rights of th e defendant were affected and tha t the error had no, or only very slight, influence on the verdict."). -7- instead thought it bore directly upon Bass's participation in the very conspirac y described in the indictment

. See Trial Tr. at 186 ("I specifically find that [Chambers's te stimony is] not 404(b) type evidence, that it's evidence bearing directly upon th e conspiracy . . . ."); id. at 195 ("[T]he evidence [of the phone conversat ion between Ford and Bass] is admissible [as] . . . proof again of the existence of the conspiracy."). We agree with this assessment of the evidence, and we thus concl ude that it did not involve another "crime or bad act" which might otherwise have been subject to exclusion under Rule 404(b). The deals Bass negotiated with Chambers and discussed with Ford were part and parcel of the conspiracy with which Bass was charged, and the district court didnot commit an abuse of discretion by authorizing introduction of the challenge d evidence. SeeFed. R . Evid. 401-403; United States v. Gibson , 105 F.3d 1229, 1235

2 (8th Cir. 1997)("In the context of a conspiracy trial, district courts have particularl y broad di scretion in determining the nature of evidence to be admitted." (quotatio n omitted)).
3. Inadmissible hearsay

Bass also declares that the co urt exposed the jury to inadmissible hearsay when ital lowed James Slosson, a special agent with the Bureau of Alcohol, Tobacco, an d Firea rms, to testify about certain remarks made by Antonio Nelson during a n underco ver

drug buy. We summarily reject this argument, however, because th e te stimony was clearly allowable as descriptive of a statement made by one of Bass' s coconspirators dur

ing the course of and in furtherance of the conspiracy. See Fed. R. E vid. 801(d)(2)(E); United States v. Darden , 70 F.3d 1507, 1529-30 (8th Cir. 1995),-8-

cert. denied , 116 S. Ct. 1449, and cert. denied , 116 S. Ct. 2567 (1996). As a result, Nelson's out of court statement is "not hearsay" under the Federal Rules of Evidence. Fed. R. Evid. 801(d)(2)(E).

4. Sentencing issue

Bass's final allegation on appeal is that the district court committed error when itrefuse d to depart downward in order to mitigate the harsh 100-to-1 ratio betwee n sentences for crack and powder cocaine. Bass recognizes that we have rejected this and similar arguments time and time again. See, e.g. , United States v. Johnson , 10 8 F.3d 919, 922 (8th Cir. 1997)(mentioning that we have repeatedly upheld th e constitutionality of U.S.S.G. § 2D1.1); United States v. Higgs , 72 F.3d 69, 70 (8th Cir. 1995)(holdi ng that district court did not commit error in refusing to depart downward based on 100-to-1 ratio). Still, he " respectfully disagrees" with our previous decisions and suggests that it is our "duty to declare that the punishment for crack versus powder cocaine is repugnant and unjust." Bass's Br. at 14.

We are symp athetic toward Bass's entreaties, but it is not for us to reverse a well-establishedpattern of this Court's case law. A single panel cannot effectuate a change in our approach to the 100-to-1 ratio; such action can originate only from the Court en ban c. See Johnson , 108 F.3d at 922. Bound by our prior opinions, we hold that th e district court did not commit error when it denied Bass's motion for a downward departure.

B. Wakefield Wake field

contests only one component of the sentence the district court imposed after accepting his guilty plea. Namely, he claims that the district court abused its discretion when it placed specialconditions on his supervised release which absolutely prohibit him f

rom obtaining or consuming alcohol, subject him to testing to-9-

detect t he presence of alcohol in his body, and require him to submit to warrantles s searc hes for alcohol. The particular provisions to which Wakefield objects read a s follows:
1) Paragraph 8 of the standard conditions of supervision is modified, i.e., in stead of merely refraining from excessive use of alcohol, th e defendant shall not purchase or possess, us e, distribute, or administer any alcohol, just the same as any other narcotic or controlled substance.
* * * 3) The defendant shall submit to and p ay for a drug test within fifteen (15) days o f release on supervised release and at least two (2) periodi c drug te sts thereafter for use of a controlled substance and shall furthe r submit to and pay for such testing as any person involved in supervising the defendant's supervised release may request to detect the presence of al cohol or controlled substances in the defendant's body fluids and t o determine whether the defendant has used any of them. 4) The defendant shall be subject to search and seizure of th e defend ant's premises, vehicle or person, day or night, with or without a warr ant, at the request of any person involved in supervising th e defenda nt's supervised release to determine the presence of alcoholi c be verages or controlled substances; any such person may make such a request with or without the cooperation of law enforcement officers.
Judgment including Sentence at 3. It is fundamental that a district judge has wide discretion in formul ating the terms of supervised release. See United States v. Schoenrock , 868 F.2d 289, 291 (8th Cir. 1989). Nevertheless, this discretion is not unfettered. The United States Sentencing Commission, duplicating and consolidating language co ntained in relevant statutes, has instructed that conditions of supervised release must be "reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the-10-

defendant, and (2) the need . . . to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant wit h needed educational or vocational training, medical care, or other correctiona l treatment in the most effective manner." U.S. Sentencing Guidelines Manual § 5D 1.3(b) (1995); see also 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-(D), 3583(d) (1994)

. Fu rthermore, the terms of supervised release cannot inflict a "'greater deprivation o f libert y than is reasonably necessary' to effectuate the goals of Congress and th e Sentencing Commission." United States v. Prenderga st , 979 F.2d 1289, 1293 (8th Cir. 1992)(quoting 18 U.S.C. § 3583(d)(2)). "Conditions that restrict a probationer' s freedom must be especially fine tuned." Id. (quotation and alteration omitted).

In Prendergast , we addressed the propriety of the district court's imposition of
con ditions substantially similar to those involved in the case sub judice

. See id. a t 1292-93. We deemed the terms of supervised release to be inappropriate because they did "not reasonably relate to the goals of rehabilitation and protection." Id. at 1293

. Essential to this holding was our observation that there was "no evidence indicating that [the defendant] suffer[ed] from alcoholism or that the use of alcohol in any wa y contributed to the commission of the offense for which he was sentenced." Id

. Accordingly, we directed the district court on remand to eli minate the conditions which completely prohibited the defendant from possessing or consuming alcohol and which
subjected him to warrantless searches for the substance. See id. ; cf. United States v. Stoural , 990 F.2d 3 72, 372-73 (8th Cir. 1993)(per curiam)(vacating virtually identical provisions imposed as special conditions of probation). We b elieve that this appeal is controlled by the reasoning we employed i n Prende rgast

. Similar to the situation in that case, there was no evidence before th e district court suggesting that Wakefield abused alcohol or that the use of alcohol played
arole in the crime to which he pleaded guilty. Cf. Sentencing Recommendation at 2 ("[T]here is no indication that Mr. Wakefield has a history of alcohol abuse."). True, Wakefield admitted that beginning in 1987 he "smoke[d] marijuana approximatelyOf

c ourse, it would be a different case altogether if the Government ha d 3 presented cogent evidence indicating that Wakefield's marijuana usage did render him drug depend ent or that he would assuredly abuse alcohol if deprived of his drug o f choice. -11- twice per week until his arrest in [t he] instant offense," and he also acknowledged that he had "imbibed alcohol on we ekends since the age of 18." Presentence Investigation Report at 12. Th e district court relied on these concessions in levying the restrictions at issue, explaining:

[T]he reason I've imposed the restric tion with regard to the alcohol is that if he's cut off on controlled substances, the easy thing, of course, to sub stitute for it is alcohol. Anybody who is drug dependent can have a tendency, if one particula r drug is cut off, to use some other drug. And so I want the record to reflect that's the reason I'v e imposed that provision or those terms as part of the supervised release.
Sentencing Tr. at 23. We certai nly appreciate the concerns which animated the district court, but we do not think the court's explanation is adequate to remove this case from the reach of Prendergast

. Notably, while it is beyond cavil that Wakefield used marijuana on a somewhat reg ular basis, there was no evidence before the district court that he wa s "d rug dependent." It is, to say the least, disturbing to learn that a young person ha s taken up the practice of smoking marijuana "approximately twice per week," but w e canno t conclude that this level of consumption is so facially excessive to compel a finding th at the person must have a dependency problem. By the same token, w e believe it was incorrect for the district court to simply assume that Wakefield would as a matter of course replace alcohol for marijuana. Indeed, even if this substitution did 3 occur, it would not, under the circumstances, be entirely unwe lcome. Though we share what appears to be the district court's desire to completely wean Wakefield and other defendants from intoxicating substances, we know that, realistically speaking, thisWe have studied cases affirming conditions simila r to those discussed here, and 4 we find them

to be easily distinguishable. See United States v. Wesley , 81 F.3d 482, 484 (4th Cir. 1996)(adjudging Prendergast to be inapp osite where defendant "had been previously convicted of being intoxicated and disruptive, had been prev iously convicted of driving under the influence, had tested positive for drugs many times, and had just beat en his wife mercilessly (with a steel-toed boot and a lamp) after getting drunk on -12- optimal result cannot be achieved i n every case. It seems to us, however, that societal go als will be met if fear of retribution and further punishment causes convicts who at one time used illicit drugs to switch to moderate and responsible alcohol consumption. In this way, at least in one sense, the system converts criminals to law abiding citizens.

At s entencing, the district court encountered a young man who had bee n convicted of a drug trafficking c rime and whose admitted possession of marijuana had previousl y led to several minor run-ins with Nebraska authorities. Although thes e factors were understandably troubling to the district court, the multiple conditions of
s u pervised release designed to prevent Wakefield from possessing or using narcotics will hopefully serve to deter him, upon release from pri son, from returning to his illegal ways. Similarly, the prohibition on excessive use of alcohol should cau se him to refrain f rom immoderate consumption of that intoxicant. In light of these facts, and because the distric t court did not have before it evidence sufficient to support a finding tha t Wakefield is prone to abuse alcohol or that alcohol had any part in the commission of the offense to which he pleaded guilty, we determine that the supervised release terms wh ichWakefield finds objectionable are not "reasonably relate[d] to the goals o f rehabilitation and protection." Prendergast , 979 F.2d at 1293.

For th ese reasons, we vacate the district court's imposition of the conditions of supervised release which completely preclude Wakefield from possessing or consuming alcohol, subject him to testing to detect the presence of alc ohol in his body, and require him to submit to warrantless searches for alcohol. We instruct the district court, on 4whiskey and beer" (citations omitted)); United States v. Thurlow , 44 F.3d 46, 47 (1st

Cir.)("Thur low comes from a family with an active history of alcohol abuse and hi s record indicated that substance abuse was and continued to be a serious problem for him."), cert . denied , 115 S. Ct. 1987 (1995); United States v. Johnson , 998 F.2d 696, 699 (9th Cir. 1993) ("In sentencing [the defendant], the district court was faced with a long history of substance abuse and violent aggression."). -13- remand, to eliminate these terms, but we leave it to the court's discretion whether t o retain other conditions which are in accord with the law of this Circuit.

III. CONCLUSION
We affirm Bass's conviction and sentence, but we vacate por tions of Wakefield's sentence and remand for proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.