___________

No. 95-3956

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United States of America, *

*

Appellee, *

*

v. *

*

Travell L. Wilson, *

*

Appellant. * Appeals from the United States

District Court for the

Western District of Missouri.

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No. 96-1044

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United States of America, *

*

Appellee, *

*

v. *

*

Earnest Watkins, Jr., also *

known as June Bug, *

*

Appellant. *

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 Submitted: May 13, 1996

 Filed: December 19, 1996

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Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and

WOLLMAN, Circuit Judge.

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HENLEY, Senior Circuit Judge.
 1

The Honorable Scott O. Wright, United States Senior District

Judge for the Western District of Missouri.

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Travell Wilson and Earnest Watkins, Jr. appeal from judgments

of the district court1 entered after a jury found them guilty of

conspiracy to distribute cocaine and of aiding and abetting

possession with the intent to distribute cocaine. We affirm.

As part of an ongoing investigation between the Drug

Enforcement Administration and the Kansas City, Missouri Police

Department, on June 23, 1993, in anticipation of executing a

federal search warrant, law enforcement officers were conducting

surveillance at the apartment of Kenneth Hulett. The officers saw

Wilson and Watkins go into the apartment, and a short time later

saw Wilson, who was carrying a black bag, and Watkins leave the

apartment and get in a car. Officers followed the car and a chase

ensued. Officers saw the car pull into a parking lot, and as the

car slowed down, saw Wilson, who was carrying a black bag, get out

of the car and run into a nearby wooded area. Watkins, who was the

driver, was arrested after the car came to a stop. Wilson was

arrested after officers found him lying face down in the wooded

area. At the time of the arrest, officers could not locate the

black bag they saw Wilson carry from the car into the woods.

However, the next day officers returned to the area and found the

bag, which contained 745 grams of cocaine. Both men were detained

for about twenty hours and released pending future indictments. On

March 29, 1995, a federal indictment charging Wilson and Watkins

with conspiracy and aiding and abetting possession was returned.

Wilson was arrested on April 21, 1995, and Watkins surrendered on

May 4, 1995. 

Watkins filed a motion to dismiss based on pre-indictment

delay. The court denied the motion. At trial, pursuant to a plea

agreement, Hulett testified for the government. Among other

things, Hulett testified that before the June 23 sale he had
 2

Among other trials, Hulett testified as a government witness

in United States v. Randolph, 1996 WL 688795, at *1 (8th Cir. Dec.

3, 1996).

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distributed cocaine to Watkins and Wilson on four occasions. In

addition, the government introduced officers' testimony,

photographs, and the bag and the cocaine retrieved from the wooded

area. 

The jury convicted Wilson and Watkins of the drug offenses.

The court sentenced Wilson to 87 months imprisonment and Watkins to

97 months imprisonment.

WILSON

On appeal Wilson argues that the government's alleged delayed

production, or non-production, of transcripts of Hulett's testimony

in other criminal cases violated the omnibus trial order, Brady v.

Maryland, 373 U.S. 83 (1963), the Jencks Act, 18 U.S.C. § 3500, and

the Fifth and Sixth Amendments.2 However, Wilson has not preserved

the issues for review. In May 1995 Wilson requested that the

district court order that the government disclose the identity of

the government's witness (Hulett) and impeachment material. A

magistrate judge denied the motion, noting that the case was an

"open file" case, and in the omnibus order the government had

agreed to disclose Hulett's identity and Jencks material ten days

before trial. According to Wilson, in July 1995 he requested

transcripts of testimony given by Hulett and two law enforcement

officers in three cases arising from the alleged conspiracy

involving Hulett. On August 8, 1995, the government provided

several of the requested transcripts. 

Trial began on August 15, 1995. Before the jury was called

in, Wilson complained to the court that the government had violated

the omnibus order by either disclosing the requested transcripts

late or not at all. Counsel, however, informed the court that he
 3

Wilson has filed a motion to supplement the record on appeal.

To the extent Wilson seeks to supplement it with material filed in

the district court, we grant the motion. We remind Wilson that

"[m]ere speculation that a government file may contain Brady

material is not sufficient to require a remand . . ., much less

reversal for a new trial." United States v. Pou, 953 F.2d 363,

366-67 (8th Cir.) (internal quotation omitted), cert. denied, 504

U.S. 926 (1992).

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was able to obtain four of the requested transcripts from the

clerk's office. In response to the court's inquiry regarding

requested relief for the alleged violations, counsel "ask[ed] for

a delay so we may go over these four additional transcripts . . .

in order to obtain proper impeachment material of witnesses at this

trial." The court told counsel he would be provided with "an

opportunity to complete whatever it is you may not have completed"

and an opportunity to make a record of his objections. After

Hulett's direct examination on August 16, the district court told

counsel it would take a long recess to allow him to make a record

regarding his discovery complaints. Counsel indicated an extended

recess was agreeable. After the recess, without the presence of

the jury, the court announced: "[D]efendants' counsel in this case

have agreed they have been given all the material that they asked

for and they have no further requests as of noon today." The court

then stated: "So all these prior matters on this subject are mooted

by this statement." Counsel did not object and cross-examined

Hulett. In this circumstance, it is clear that Wilson has failed

to preserve the discovery issues for review. See United States v.

Warfield, 97 F.3d 1014, 1024 (8th Cir. 1996). Indeed, counsel

expressly waived review of the issues.

Even if Wilson had preserved the issues for review, his

arguments are without merit.3 As a general rule, we review

discovery matters for an abuse of discretion. United States v.

Byrne, 83 F.3d 984, 990 (8th Cir. 1996). Assuming, without

deciding, that the government failed to comply with the discovery

order, the district court cannot be faulted for granting Wilson's
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request for time to review the materials and for providing him the

opportunity to make a record of his complaint. See Fed. R. Crim.

P. 16(d)(2) (if party fails to comply with discovery order, court

may grant such relief "it deems just under the circumstances"). 

Wilson's Brady claim must also fail. "Where the prosecution

delays disclosure of evidence, but the evidence is nonetheless

disclosed during the trial, Brady is not violated." United States

v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996). In addition, "the

government need not disclose evidence available to the defense from

other sources or evidence already possessed by the defendant[]."

Id. As to the Jencks Act claim, "[a]lthough in many cases the

government freely discloses Jencks Act material to the defense in

advance of trial," contrary to Wilson's suggestion on appeal, "the

government may not be required to do so." United States v. White,

750 F.2d 726, 729 (8th Cir. 1984). Also, without merit are

Wilson's constitutional claims. See, e.g., United States v.

Rabins, 63 F.3d 721, 725-26 (8th Cir. 1995) (though government

failed to disclose positive drug test of cooperating witness, no

Sixth Amendment violation where jury was informed of witness' plea

agreement, previous drug use, and possible bias), cert. denied, 116

S. Ct. 1031 (1996). In this case, both Wilson and Watkins

vigorously cross-examined Hulett regarding, among other things, his

plea agreement and role in other drug offenses. 

Wilson next argues that the district court erred in admitting

a coconspirator's statement under Fed. R. Evid. 801(d)(2). The

district court did not err. Indeed, the court followed United

States v. Bell, 573 F.2d 1040 (8th Cir. 1978), which sets forth

procedures regarding admissibility of statements under Rule

801(d)(2). The district court "conditionally admitt[ed] the

statement" subject to objection, and "at the conclusion of all the

evidence made an explicit determination for the record" that the

government had proved by a preponderance of the evidence that "the

statement was made by a coconspirator during the course and in
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furtherance of the conspiracy." Id. at 1044. The record amply

supports the district court's Bell ruling.

Last, Wilson challenges the sufficiency of the evidence,

asserting that Hulett's testimony was incredible. However, it was

the jury's function to assess Hulett's credibility. United States

v. McCarthy, 97 F.3d 1562, 1571 (8th Cir. 1996). Although "we

decline to invade the province of the jury as [Wilson] would have

us do[,]" id. (internal quotation omitted), we note that Hulett's

testimony concerning the events of June 23 was corroborated by the

officers' testimony, surveillance photographs, and physical

evidence. In addition, Wilson's flight was evidence of

"consciousness of guilt, and thus guilt itself." United States v.

Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) (internal quotation

omitted). 

Watkins

Watkins argues that the district court erred in denying his

motion to dismiss. Watkins alleges that the delay between his June

1993 arrest and March 1995 indictment violated the Speedy Trial

Act, 18 U.S.C. § 3161(b), which provides that "[a]ny . . .

indictment charging an individual with the commission of an offense

shall be filed within thirty days from the date on which such

individual was arrested or served with a summons in connection with

such charges." He also claims the delay violated the Sixth

Amendment speedy trial guarantee. His statutory and constitutional

claims are without merit. As to his statutory claim, his June 1993

arrest did not trigger the Speedy Trial Act clock. Under section

3161(b) "[t]he right to a speedy trial on a charge is triggered by

arrest only where the arrest is the beginning of continuing

restraints on defendant's liberty imposed in connection with the

formal charge on which the defendant is eventually tried." United

States v. Stead, 745 F.2d 1170, 1172 (8th Cir. 1984). In other

words, as in the instant case, "the protections of the Speedy Trial

Act are not triggered by an arrest when the arrested person is
 4

The district court also rejected Watkins' claim that the

delay violated his Fifth Amendment due process rights. On appeal,

he does not appear to raise a Fifth Amendment issue. In any event,

the district court correctly rejected the claim. As the court

held, Watkins had not proved that the delay had "actually and

substantially prejudiced the presentation of [his] defense."

United States v. Miller, 20 F.3d 926, 931 (8th Cir.), cert. denied, 115 S. Ct. 226 (8th Cir. 1994). 

 5At sentencing, Watkins only requested a two-level reduction

for being a minor participant. We therefore need not address his

arguments on appeal that he was entitled to a four- or three-level

reduction under section 3B1.2. However, Watkins' arguments are

without merit.

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immediately released without formal charge." Id. See also United

States v. Miller, 23 F.3d 194, 199 (8th Cir.) ("The Speedy Trial

Act requires dismissal as a sanction for excessive pre-indictment

delay when the arrest is based on a charge that is contained in a

complaint filed against the defendant."), cert. denied, 115 S. Ct.

207 (1994). In addition, because Watkins was released pending

indictment and without "other substantial restrictions on [his]

liberty," the delay did not violate his Sixth Amendment rights.

See United States v. Loud Hawk, 474 U.S. 302, 312 (1986).4 

Watkins also argues that the district court erred in refusing

to grant his request for a two-level minor participant reduction

under U.S.S.G § 3B1.2(b).5

 On appeal, we review the district

court's denial for clear error, United States v. Thompson, 60 F.3d

514, 517 (8th Cir. 1995), keeping in mind that Watkins had "the

burden of proving his eligibility for a decrease in the base

offense level." United States v. Carrazco, 91 F.3d 65, 67 (8th

Cir. 1996). Watkins argues that he was entitled to the reduction

because he was less culpable than Wilson. He is incorrect. "A

defendant who is concededly less culpable than his codefendants is

not entitled to the minor participant reduction if that defendant

was 'deeply involved' in the criminal acts." Thompson, 60 F.3d at

518 (quoting United States v. West, 942 F.2d 528, 531 (8th Cir.

1991)). In this case, there was evidence that Watkins was "deeply
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involved." As the government notes, Hulett testified that Watkins

was at Wilson's side during each of the transactions, that "they

were in it together," and that Watkins was either Wilson's righthand man or bodyguard. We have observed that "[p]articipants in a

conspiracy to distribute drugs often have distinct roles. Those

differences are not always relevant in determining sentences."

United States v. Logan, 49 F.3d 352, 360 (8th Cir. 1995). In

addition, Watkins drove Wilson to at least three of the drug

transactions and the importance of his role as a driver was

demonstrated during the June 23 chase. See United States v.

Rodamaker, 56 F.3d 898, 904 (8th Cir. 1995) (although wife may have

been less culpable than husband, no minor participant reduction

because she had "important role" in scheme).

Accordingly, the judgments of the district court are affirmed.

A true copy.

Attest:

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