## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________

___________ No. 97-2825

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Jesse Puckett, * * Defendant - Appellant, *

__________ Appeals from the United States No. 97-3095 District Court for the

__________ Southern District of Iowa. United States of America, * * Plaintiff - Appellee, * * v. * * Lyndon Simmons, * * Defendant - Appellant, *

__________ No. 97-3096

__________-2-

United States of America, * * Plaintiff - Appellee, * * v. * * Deleon Gadison, * * Defendant - Appellant, *

__________ No. 97-3098

__________ United States of America, * * Plaintiff - Appellee, * * v. * * George Harper, * * Defendant - Appellant, *

__________ No. 97-3100

__________ United States of America, * * Plaintiff - Appellee, * * v. * * Tyrone Redmond, also known asThe Ho norable Pasco M. Bowman became Chief Judge of the United State s 1 Court of Appeals for the Eighth Circuit on April 18, 1998. -3- Isaac Thomas, * * Defendant - Appellant, *

__________ No. 97-3184

__________ United States of America, * * Plaintiff - Appellee, * * v. * * Jessica Sparlin, * * Defendant - Appellant. *

___________ Submitted: April 16, 1998 Filed: June 26, 1998

___________ Before BOWMAN, Chief Judge, McMILLIAN and MURPHY, Circuit Judges. 1

___________ MURPHY, Circuit Judge.
Jess e Puckett, Lyndon Simmons, Deleon Gadison, George Harper, Tyron e Redmond, and Jessica Sparlin appeal their convictions for conspiracy to distributeThe Honorable Charles E. Wolle, Chief Judge, United States District Court for 2 the Southern District of Iowa. Harper, Pu ckett, and Redmond have all filed pro se briefs in addition to th e 3 submissions of counsel. We ordinarily will not consider pro se filings by individuals who are represented by counsel, and we see no reason to do so here. Se e United States v. Marx , 991 F.2d 1369, 1375 (8th Cir. 1993). -4- coc aine base or crack, 21 U.S.C. § 856, possession of crack with intent to distribute, andopening and maintaining a place where controlled substances are distributed, 21 U.S.C. § 846. They raise issues of sufficiency of the e vidence and related to the denial by the district court of motions for suppressi on, a mistrial, dismissal of the indictment, 2 and a new trial. Redmond, Harper and Sparlin also appeal their sentences an d challenge the court’s calculation of the amount of drugs, its enhancement for leadership role, and the extent of its downward departure. We affirm. 3
I.
Evidence at trial showed

that the defendants were involved in a crack business operating in Clinton, Iowa from around January, 1995 when Harper and Gadiso n arrived there from Chicago. Puckett and Simmons followed in the spring of 1996, and Redmond joined them in May. H arper was the leader of the conspiracy, obtaining the drugs and directing distribution efforts. Gadison had direct control over Puckett , Simmons, Redmond, and other distributors, and he reported to Harper. Jessica Sparlin assisted Gad ison by selling and transporting drugs, handling money, obtaining pagers and c ars, and by procuring twelve different apartments used to deal drugs at variou s times during the conspiracy. After an eight day trial, the jury acquitted Harper of one charge but f

ound him and the other defendants guilty of all remaining charges in th e twenty count indictment.-5-

At the sentencing hearing the district court calculated the amount of drug s attributable to the conspiracy based on the testimony at trial, the length of th e conspirac y, and the money and drugs seized from conspirators. It found that th e conspir acy involved one kilogram of crack. It enhanced Harper’s sentence by fou r levels for his leadership role in the offense and sentenced him to 330 month s imp risonment. Gadison and Simmons each were sentenced to 360 months, an d Redmond received a life sentence. The court initially sentenced Sparlin to 61 months, but modified

the sentence to 57 months after considering a previous stipulation of the parties; both sentences reflected a downward departure.
II.
A.
Defe ndant Harper challenges the sufficiency of the evidence for his conviction on count 12 which charged distribution of a controlled substance on May 23, 1996. He argues that this conviction should be reversed and the charge dismissed because th e gover nment offered no evidence to support it. On appeal we must view the evidence most f avorably to the verdict, accept all reasonable inferences in support of it, an d uphold the conviction if the jury’s verdict is supported by substantial evidence. Se e United States v. Black Cloud , 101 F.3d 1258, 1263 (8 th Cir. 1996). The record shows th atHarper sold crack to a government informant twice on May 23. Each time th e informant returned to th e police with the crack he had purchased, and the transactions were recorded and the recordings were admitted into evidence at trial. This is sufficient to uphold Harper's conviction for distribution on May 23. Gadison challenges the suffi ciency of the evidence to convict him of knowingly opening and maintaining a place where controlled substances were distributed. See 21Gadison also asserts that § 856 (a)(1) goes beyond the power granted Congress 4 in the Commerce Clause, citing United States v. Lopez , 514 U.S. 549 (1995)

. Congress has specifically found that intrastate drug trafficking affects interstat e commerce, see 21 U.S.C. § 801(3), however. Section 856(a)(1) is unlike the statute in Lopez where there were no findings about interstate commerce. -6- U.S.C. § 856(a). Jessica Sparlin testified that Gadison directed her to rent ten different 4 apartm ents for the purpose of selling or manufacturing crack, and her testimony i s sufficient to suppo rt the jury's finding that Gadison was guilty of the offenses charged in counts 1, 3, 4, 5, 7, 8, 10, 15, 17, 19 and 20.
Simmons also challenges the sufficiency of the evidence to support hi s conviction. H e argues that most of the evidence established only his association with the other defendants and that the testimony of an informant w ho bought crack from him was unreli able. The informant Leslie Schroeder testified about buying crack fro m Simmons several times. On one occasion Simmons showed him four or five rocks of cra ck from which he could choose. Schroeder had learned he could buy crack at a particular location when he saw Gadison and Simmons at a gas station, and Gadison gave him the information. Anot her confidential informant testified that he bought four ro cks of crack from Simmons while Harper was present and that Harper instructe d Simm ons to give the informant “a good deal” and Simmons gave Harper the mone y after t he sale. There was sufficient evidence to support Simmons’ conviction fo r conspiracy and for distribution of crack, and deciding what weight to give the evidence is one of the jury’s key responsibilities.
B.
Simmons claims that the district court erred in denying his motion to suppress Schroeder’s identification of him because it was unreliable in that it resulted from an impermissibly suggestive photo lineup and that his conviction should be reversed-7-

because it was based only on Schroeder’s testimony. Se e United States v. Johnson , 56 F.3d 947, 953 (8th Cir. 1995); Simmons v. United States , 390 U.S. 377, 384 (1968); Nei lv. Biggers , 409 U.S. 188 (1972). After each crack transaction with Simmons , agents showed Schroeder a photograph of Simmons and asked whether the perso n portrayed was the individual wh o had conducted the sale. Simmons argues Schroeder had limited opportunity to view the seller, the seller was never introduced to Schroeder, and Schroeder initially made a mist ake about how many times he had purchased crack from Simmons. We review the denial of a motion to suppress an identificatio n de novo, se e Johnson , 56 F.3d at 953, and look to whether the procedure was impermissibl y suggestive and if under the totality of the circumstances “sugges tive procedures created a very substantial li kelihood of irreparable misidentification.” Id. (citations omitted). Alth oughthe procedure here seems quite suggestive, the circumstances indicate tha t the identification itself was reliable. See Trevino v. Dahm , 2 F.3d 829, 833 (8th Cir. 1993). Schroeder had seen Simmons several times with coconspirators and purchased crack from him on different occasions, and the testimony of other witnesses indicates that a misi dentification was unlikely. Sparlin said that Simmons was selling crack , another witness testified that she knew he was a part of the drug conspiracy, and a neighbor reported that he recognized Simmons as an acquaintance of th e coconspirators. Furthermore, Schroeder’s abili ty to identify Simmons was attacked on cross examination, and th e jury had an opportunity to weigh this evidence against that in support of the identification. The distri ct court therefore properly denied the motion to suppress, and reversal is not warranted.
C. Puckett, Simmons, Gadison and Redmond all contend that they are entitled t o a n ew trial because a government witness made a reference to their gang affiliation

. Prior to trial the parties stipulated that the government would not bring out evidenc e that the d efendants were affiliated with a gang and would instruct its witnesses not to make gang references during their testimony “unless and until the defense through-8-

ques tioning or evidence, makes such evidence probative on any material issue. ” Defense counsel asked Schroeder on cross examination how he was able to remember accurately the various drug buys he made months earlier. Counsel attempted to cut off Schroed er’s response, but the court allowed him to finish and he said that h e remembered the buys beca use “[t]hese people, they’re gang-affiliated, and that scares me. That’s wh y I was more nervous to work with these people.” Defense counse l asked to approach the bench, but the court imm ediately instructed the jury to disregard the answer. It later denied a defense motion for a mistrial.
The denial of a mistrial is reviewed for abuse of discretion, and none has been sho wn in this instance. See United States v. Hale , 1 F.3d 691, 694 (8th Cir. 1993)

. Defens e counsel brought out the testimony on gang affiliation through its questioning of Schroe der. See United States v. Hall , 109 F.3d 1227, 1231-32 (7th Cir.), cert
. denied , 118 S.Ct. 153 (1997). The government did not breach its agreement, and no ot her mention was made of gangs at trial, and the district court instructed the jury t o di sregard the testimony. See United States v. Muza , 788 F.2d 1309, 1312 (8th Cir

. 1986).
Gadi son claims in addition that the district court committed plain error an d denied his rights to a fair trial and assistance of counsel by refusing to allow th e attorneys t o approach the bench during Schroeder’s testimony. The district court has wid e discretion in managing a trial, and it did not act inappropriately under thes e circumstances. It immediately advised the jury to disregard Schroeder’s remark and later fully considered the defense arguments for a mistrial outside the presence of the jury. Gadison’s constitutional rights were not denied by failure to hol d an instant bench conference.-9- D. Puckett argues that the

district court erred by allowing the government to recall law enforcement witnesses during the course of trial so that the evidence could b e presented in chronological order. Puckett says that this procedure lent u ndue credibility to their testimony and interfered with effective cross examination. A trial court ha s di scretion to exercise control over the order of interrogating witnesses to “make th e interrogation and presentation effective for the ascertainment of truth,” Fed. R. Evid. 611, and no reversal is warranted unless an abuse of discretion affects the substantial rights of the parties. See United States v. Dolan , 120 F.3d 856, 869 (8th Cir. 1997); United States v. Triplett , 104 F.3d 1074, 1078 (8th Cir.), cert. denied , 117 S.Ct. 1837 (1997). The witnesses testified about different subject matter each time they wer e called to the st and, the defendants were free to cross examine them about any of their testi mony, and there is no indication that the government recalled the witnesses t o bolster thei r credibility. While it may be preferable to have witnesses testify in a less interrupted manner, we

cannot say the district court abused its discretion. See United States v. DeLuna , 763 F.2d 897, 911-12 (8th Cir. 1985).
E.
Gadison sa ys that his convictions on counts 1, 2, and 3 should be reverse d because the government called Jessica Mitchell to testify befo re the grand jury after the ind ictment

against him had been filed. She was allowed to testify at trial over hi s objection, and he argues that the grand jury was used as a discovery tool in violation of the fifth amendment. See United States v. Doss , 545 F.2d 548 (6th Cir. 1976). In order to obtain reversal on this ground Gadison must establish that Mitchell wa s summoned b efore the grand jury “for the sole or dominant purpose of preparing a pending indi ctment for trial.” United States v. Gibbons , 607 F.2d 1320, 1328 (10t h Cir

. 1979); see United States v. Breitkreutz , 977 F.2d 214, 217 (6th Cir. 1992)

. Mitchell testified at trial that she was called before the grand jury to provide-10-

inf ormationabout the drug activity of an individual who was not a defendant in th e case. During the course of her grand jury testimony, she also indicated that she ha d purchased crack from s ome of the defendants. There is no indication that the primary purpose of Mitchell’s grand jury testimony was to obtain additional evidence against these defendants, and Gadison has thus failed to establish an abuse of the grand jury process. See Breitkreutz , 977 F.2d at 217.
F. Harper argues that the court erred by denying his motion for a new trial based on newly discovered evidence and his motion to dismiss the indictment b ecause of false testimony before the grand jury. Prior to trial the government turned over LeShaw n Coleman’s grand jury testimony which included statements that Coleman had gone to Davenport to pick up drugs with Harper, Gadison an d Sparlin. At trial the government disclosed statements by Sparlin which contr adicted this testimony about the drug trips. Harper and Ga dison moved for a new trial based on the late disclosure of Sparlin’ s sta tements and for dismissal of the indictment because it rested on Coleman’s fals e testimony. T he court denied the motion for a new trial because the evidence wa s available during trial, the defendants had failed to show diligence in obtaining it earlier, the evidence was cumulative as shown by the t horough cross examination of Coleman, and its earlier production would not likely have led to an acquittal. See United States v. Lu na , 94 F.3d 1156, 1161 (8th Cir. 1996). The court also denied the motion t o dismiss because it was not shown that th e indictment was based on perjured testimony and because the fact that there was a conflict between witnesses did not in itsel f underm ine probable cause. Harper now renews his contentions that Sparlin’ s statements were disclosed too late to be of use as impeachment evidence agains t Coleman an d that his due process rights were violated because the indictment wa s based on testimony the government knew to be false, citing United States v. Basurto , 497 F.2d 781 (9th cir. 1974) . After examining the record, including the admissions of the defendants about pos sessing Sparlin’s statements at trial, we find neither an abuse-11-

of discretion in the denial of the motion for a new trial, see United States v. Caldwell , 83 F.3d 954, 955 (8th Cir. 1996), nor any constitutional violation in declining t o dismiss the indictment.
III.
A.
Redm ondargues that he is entitled to resentencing because the district cour t erred in its f

indings on the amount of drugs for which he was held responsible. Se e Unite d States v. Olderbak , 961 F.2d 756, 763-64 (8th Cir. 1992). The district cour t indicated it based its finding that the conspiracy involved 1 kilogram of crack cocaine on th e length of the conspiracy, each defendant’s involvement in the conspiracy, th e streetvalue of crack, the results of surveillance, and the amounts seized. See USSG § 2D1.1, comment.( n. 12). Evidence at trial showed that the conspir ators were dealing larg e amounts of crack over an extended period of time and that Redmond wa s significantly involved in the conspiracy, had large amounts of cash, and left a supply of drugs for dealing at an acquaintance’s residence. The findings on quantity were not clearly erroneous. See United States. v. Flores , 73 F.3d 826, 833 (8th Cir. 1996).
B. Harper challenges the four point enhancement he received for his lead ership role. SeeUSSG § 3B1.1 . Findings on role in the offense are reviewed for clear error. See United States v. McCarthy , 97 F.3d 1562, 1579 ( 8th Cir. 1996), cert. denied , 117 U.S. 1011 (1997). Trial testimony established that Harper oversaw the whole operation, that he di rected the procurement of drugs, that he received the proceeds of drug sales b y coconspi rators, that he recruited Coleman to sell crack for him, and that Gadison had to go through

Harper before he could make any decisions for the conspirators. There was therefore no clear error in the sentence enhancement.-12- C. Sparlin attempts to challenge the extent of the district court’s downwar d departure in her sentencing. She initially received a sentence of 61 months. A three level reduction for being coerced had resulted in a guidelin es range of 121-151 months, from which the district court departed downward for substantial assistance. Since the parties had neglected to inform the court about a stipulation affecting the sentence, the court reconvened the hear

ing and then imposed a sentence of 57 months. Sparlin was againgranted a reduction for coercion and a downward departure for her assistance , but the coer cion reduction was reduced from three to two levels and the departur e granted was 4 0 months below the new guidelines range. Sparlin argues that she i s entitled to the same number of months departur e as she originally received, that is a 60 month depart ure instead of 40 months. We have no jurisdiction to consider thi s argument, however, because the extent of a downward departure is unreviewable o n appeal. See United State s v. Goodwin , 72 F.3d 88, 91 (8th Cir. 1995); United States v. Albers , 961 F.2d 710, 712 (8th Cir. 1992).
IV. We conclude that the evidence was sufficient to supp ort the convictions and that the district court did not err by refusing to sup press Simmons’ identification or to grant the motions m ade by appellants. We also find no sentencing errors. We therefor e affirm the judgments. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.