United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 02-3770

__________

United States of America, *

*

Appellee, *

* 

 v. * 

* 

Durrell Kaye Jackson, * 

* 

 Appellant. *

__________ Appeal from the United 

States District Court

No. 02-3910 For the Northern District

__________ of Iowa

United States of America, *

*

Appellee, *

*

v. *

*

Dentonious Neville Washington, also *

known as Neal, also known as Neil, *

also known as Buck Mouth, *

*

Appellant. *

__________

No. 02-3937 

 __________

United States of America, *

*

 Appellee, *
1

 The Honorable Andrew W. Bogue, United States Senior District Judge for

the District of South Dakota, sitting by designation.

2

 The Honorable Michael J. Melloy, United States District Judge for the

Northern District of Iowa. Judge Melloy has since been appointed United States

Circuit Judge for the Eighth Circuit and currently serves in that capacity. 

2

*

v. *

*

Arthur Mabry, also known as Oscar, *

*

Appellee, *

__________

Submitted: June 10, 2003

 Filed: September 29, 2003 

__________

Before MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges, and BOGUE,1

District Judge.

_________

BOGUE, District Judge.

After a lengthy trial in the district court,2

 a jury convicted Durrell Kaye

Jackson, Dentonious Neville Washington, and Arthur Eugene Mabry of participating

in a drug-related conspiracy. Jackson was also found guilty of operating a continuing

criminal enterprise (CCE). Both Jackson and Washington were additionally

convicted of violating numerous other federal criminal statutes. Jackson’s

convictions resulted in the imposition of two life sentences and one provisional life

sentence. Each defendant now appeals. We affirm, but remand for the vacation of

Jackson’s conspiracy conviction.
3

I. FACTUAL AND PROCEDURAL BACKGROUND

An extensive amount of evidence was presented to the jury, however, we limit

our discussion to those facts which are necessary to resolve the issues raised on

appeal. In 1991, Jackson was prosecuted by the Northern District of Iowa on drugrelated charges. Upon the completion of his prison sentence in 1995, Jackson

returned to Waterloo, Iowa, on supervised release. On numerous occasions in 1996,

Jackson tested positive for marijuana. Jackson’s marijuana use violated the

conditions of his supervised release and he eventually served an additional four

months in prison. 

After his initial release from custody in 1995, Jackson became extensively

involved in cocaine trafficking; receiving assistance in varying degrees from

Washington, Mabry, and others. Large quantities of cocaine, either powder or

cocaine base (crack), were transported to Waterloo from Chicago, Illinois,

Milwaukee, Wisconsin, and several additional locations. On many occasions,

Jackson paid couriers to deliver the drugs or participated directly with the assistance

of female companions. On one occasion, law enforcement officers intercepted 1980

grams of cocaine powder which Jackson attempted to ship through the United Parcel

Service. With respect to the cocaine that successfully arrived in Waterloo,

Washington and others “cooked” the powder into crack. The crack was ultimately

distributed by Jackson, Washington, Mabry, and numerous other individuals. 

On June 14, 2000, after performing a lengthy investigation into the illegal

activities of the individuals involved in this drug distribution scheme, law

enforcement officers applied for a wiretap order seeking authorization to intercept

Washington’s cellular telephone calls. The application was supported by a 39-page

affidavit of Special Agent Scott Gray of the Federal Bureau of Investigation. Finding

probable cause to believe that the individuals listed, including Jackson, Washington,

and Mabry, were committing and would continue to commit offenses involving
3 Jackson orally joined Washington’s suppression motion.

4

controlled substances and using a communication device to facilitate those violations,

the district court granted the application.

The evidence gained as a result of the communications intercepted by the

wiretap, as well as through conventional investigative techniques, resulted in a six

count indictment which was returned on October 26, 2000. A 19 count superseding

indictment was subsequently filed on November 15, 2000. Jackson, Washington, and

Mabry were charged with conspiring to distribute cocaine, crack, and marijuana in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The conspiracy count also alleged

that the three defendants distributed cocaine and crack to persons under the age of 21

in violation of 21 U.S.C § 859, and that the defendants, in violation of 21 U.S.C. §

861(a)(1), used or persuaded a person under the age of 18 to violate federal drug

laws. Jackson was additionally charged in separate counts with aiding and abetting

the distribution of 4.9 grams of crack, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C) and 851 and 18 U.S.C. § 2; engaging in a CCE, in violation of 21 U.S.C. §

848(a), (b), and (c); attempting to distribute 1980 grams of cocaine, in violation of 21

U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) and 851; and five additional counts of using

a communication device in causing and facilitating the commission of a felony, in

violation of 21 U.S.C. § 843(b). In addition to the conspiracy allegation, Washington

was charged in three separate counts with distributing crack in quantities ranging

from 13.1 grams to 26.1 grams, as well as distributing five or more ounces of

marijuana in violation of Sections 841(a)(1) and (b)(1)(B), and 851. Washington was

also charged with nine counts of using a communication device in causing and

facilitating the commission of a felony in violation of Section 843(b). 

Prior to trial, Washington filed a suppression motion,3

 arguing that the wiretap

application failed to establish the necessity for the investigative tool and the evidence

gained as a result of the intercepted communications therefore was inadmissable at
4 The Honorable Mark W. Bennett, Chief United States District Judge for

the Northern District of Iowa presided over the suppression motions related to the

wiretap authorization approved by Judge Melloy. Judge Bennett accepted a

recommendation to deny the suppression of the evidence by the Honorable John

A. Jarvey, Chief United States Magistrate Judge for the Northern District of Iowa.

5

trial. The district court4 denied the motion. Trial of this matter began on February

5, 2002, and the jury began deliberations on February 28, 2002. On March 1, 2002,

the jury found Jackson and Washington guilty of each offense charged against them

in the indictment. Mabry was found guilty of conspiring to distribute 50 grams or

more of crack and 500 grams or more of cocaine.

On October 18, 2002, Jackson received concurrent life sentences for his CCE

conviction and his attempt to distribute 1980 grams of cocaine. The district court

imposed a provisional life sentence on the conspiracy conviction pending appellate

review of the CCE conviction. Jackson received lesser sentences for his remaining

convictions. Washington and Mabry were sentenced on November 14, 2002. The

district court determined that both Washington and Mabry had a sentencing range of

360 months to life in prison. However, the government filed a substantial assistance

motion pursuant to 18 U.S.C. § 3553(e) and the district court sentenced Washington

and Mabry to 20 years imprisonment for their participation in the conspiracy.

Washington received concurrent sentences for his remaining convictions. Jackson,

Washington, and Mabry each appeal, raising issues both individually and collectively.

II. DISCUSSION

A. Wiretap Necessity

 

Washington argues that in seeking the wiretap authorization, the government

failed to satisfy the necessity requirement of 18 U.S.C. § 2518 and, therefore, the

district court erred in denying his motion to suppress the evidence obtained as a result

of the intercepted communications. Jackson adopts the arguments raised by
6

Washington for the purpose of this appeal. “We review the denial of a motion to

suppress de novo but review underlying factual determinations for clear error, giving

‘due weight’ to the inferences of the district court and law enforcement officials.”

United States v. Replogle, 301 F.3d 937, 938 (8th Cir. 2002). The necessity finding

made prior to a district court’s authorization of a wiretap is a factual determination.

See United States v. Thompson, 210 F.3d 855, 859 (8th Cir. 2000).

The necessity requirement of § 2518 insures “‘that wiretaps are not routinely

employed as the initial step in an investigation.’” Id. at 858-859 (quoting United

States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir. 1994)). To satisfy the requirement,

an application requesting a wiretap order must include “a full and complete statement

as to whether or not other investigative procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18

U.S.C. § 2518(1)(c): See also Thompson, 210 F.3d at 858. Having reviewed the

affidavit supporting the application, we find that the district court’s necessity finding

under § 2518 was not clearly erroneous.

The wiretap was requested for the purpose of discovering the full scope of the

conspiracy, the full extent of the criminal activities, and to identify and successfully

prosecute each member of the organization. If law enforcement officers are able to

establish that conventional investigatory techniques have not been successful in

exposing the full extent of the conspiracy and the identity of each coconspirator, the

necessity requirement is satisfied. Id. at 859 (citing Maxwell, 25 F.3d at 1394; United

States v. Smith, 909 F.2d 1164, 1166 (8th Cir. 1990); United States v. Macklin, 902

F.2d 1320, 1327 (8th Cir. 1990); United States v. O’Connell, 841 F.2d 1408, 1414-15

(8th Cir. 1988)). Agent Gray’s affidavit states, with detail, the conventional

investigative techniques utilized by law enforcement officers over a period of several

years. The methods included surveillance, confidential informants, trash collections,

pen registers and toll record information, grand jury subpoenas, search warrants, and

witness interviews. The affidavit indicates the difficulties law enforcement officers

encountered and explained why the investigative methods which were attempted
7

failed to discover the full scope of the conspiracy. For instance, physical surveillance

was largely unsuccessful because Jackson generally appeared to be aware of the

presence of the officers; trash collections had been attempted with successful results

but were not likely to establish the extent of the conspiracy; and confidential

informants were proving to be of limited value because they were providing historical

information, were presently incarcerated, or were refusing to cooperate. 

Traditional investigative techniques had undoubtedly provided law

enforcement officials with sufficient evidence to pursue prosecution of Washington

and Jackson for drug-related offenses. Trash collections had provided evidence of

drug possession and distribution, and informants had made controlled purchases from

Washington and provided valuable insight into the organization. Had the purpose of

the wiretap been to investigate the illegal activities of only Washington or Jackson,

a necessity finding would have been erroneous. However, the facts of this case do

not present such a situation. The focus of this application was upon the conspiracy

itself, not merely those individuals who were involved and the government

adequately established their need for a wiretap. The district court’s necessity finding

was not clearly erroneous and the motion to suppress was properly denied.

 

B. Sufficiency of the Evidence

With regard to his CCE conviction, Jackson challenges the sufficiency of the

evidence supporting both the jury’s special interrogatory findings as well as the

district court’s factual findings at his sentencing. Jackson argues that the evidence

was insufficient to establish that he acted with five or more persons for whom he was

an organizer, manager, or supervisor. Further, he contends that the evidence does not

support a finding that his violation involved 1.5 kilograms of crack. The evidence

supports the jury’s special verdict findings and we affirm Jackson’s CCE conviction.

Moreover, the evidence supports the district court’s leadership and drug quantity

determinations and we also affirm the imposition of Jackson’s life sentence.

 
5

 The substance specifications and the applicable drug quantities are found

in § 841(b)(1)(B). In this case, the special verdict question was based upon §

841(b)(1)(B)(iii), which requires a quantity of 5 grams or more of crack. 300

times 5 grams equals 1.5 kilograms of crack. 

8

In reviewing the sufficiency of the evidence, we consider the evidence “in the

light most favorable to the government, resolving evidentiary conflicts in favor of the

government, and accepting all reasonable inferences drawn from the evidence that

support the jury’s verdict.” United States v. Espino, 317 F.3d 788, 792 (8th Cir.

2003). Jury verdicts are not overturned lightly, United States v. James, 172 F.3d 588,

591 (8th Cir. 1999), and “[w]e will reverse only if no reasonable jury could have found

the accused guilty beyond a reasonable doubt.” Espino, 317 F.3d at 792. With

respect to the district court’s factual findings at sentencing, they are reviewed for

clear error. United States v. Scolaro, 299 F.3d 956, 957 (8th Cir. 2002). 

The special verdict questions were designed to assist the jury in determining

whether Jackson engaged in a CCE. The elements of § 848, the CCE statute, are met

if the defendant commits:

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of [three or more related felony] 

 violations [of federal narcotics laws];

3) in concert with five or more [other] persons;

4) for whom the defendant is an organizer [, manager] or supervisor;

5) from which he derives substantial income or resources.

United States v. Jelinek, 57 F.3d 655, 657 (8th Cir. 1995) (citations omitted). Further,

several of the special verdict questions focused on § 848(b), which mandates that a

person engaging in a CCE be imprisoned for life if that person was “the principal

administrator, organizer, or leader of the enterprise” and the violation involved either

“300 times the quantity” of a substance specified in § 841(b)(1)(B),5

 or, the enterprise
6

 Jackson argues that the government did not prove that he received $10

million dollars in gross receipts during any twelve-month period. Section

848(b)(1) requires proof of either drug quantity or gross receipts, not both. The

government submitted evidence of drug quantity and was not required to prove

Jackson’s gross receipts.

9

“received $10 million dollars in gross receipts during any twelve-month period of its

existence for the manufacture, importation, or distribution” of the substance.6

We note that “‘[t]he basic outlines of the ... management element have been

liberally construed.’” United States v. Roley, 893 F.2d 992, 994 (8th Cir. 1990)

(quoting United States v. Possick, 849 F.2d 332, 335 (8th Cir. 1988) (citations

omitted)). The terms “organizer,” “manager,” and “supervisor” are interpreted

according to their plain meaning. Possick, 849 F.2d at 335 (citations omitted). This

element of the CCE statute is satisfied if “the defendant exerted some type of

influence over another individual as exemplified by that individual’s compliance with

the defendant’s directions, instructions, or terms.” Id. (citing United States v. Grubbs,

829 F.2d 18, 19-20 (8th Cir. 1987) (per curiam); United States v. Lueth, 807 F.2d 719,

732 (8th Cir. 1986); United States v. Jones, 801 F.2d 304, 310 (8th Cir. 1986)).

Although the defendant need not manage five individuals at one time, Possick, 849

F.2d at 335, a mere buyer-seller relationship is not sufficient to satisfy the

management element. Roley, 893 F.2d at 995 (citing United States v. Butler, 885

F.2d 195, 201 (4th Cir. 1989)). With these principles in mind, we address Jackson’s

arguments. 

 

The jury determined that Jackson managed or supervised Washington, Mabry,

Carlos Rondell Phillips, Greg Watson, John L. Humphrey, Sarah Harken, Jill

Fosselman, Vinneator Bruce (via Washington), and Curtis Austin. Absent

Washington and Mabry, the government presented the testimony of each of these

individuals to the jury. Harken and Fosselman testified that they made numerous trips

to Chicago and Milwaukee with Jackson and Mabry. Harken and Fosselman

normally returned to Waterloo in rental vehicles while Jackson and Mabry drove
10

separately. Jackson paid for the rental cars, provided the couriers with specific

instructions on driving, where to leave the vehicle, and to refuse consent if a law

enforcement officer sought to search the vehicle. Humphrey, also a courier, testified

that he made three trips to secure cocaine at Jackson’s request. Humphrey was

provided with a rental vehicle for the trips, was promised $1,000 for each trip, and

received, from Jackson, a portion of the funds. In addition to purchasing crack and

powder cocaine from Jackson, another courier, Austin, testified that he was recruited

and paid $2,000 to transport drugs across Waterloo. Jackson clearly directed these

individuals at various times throughout the course of the conspiracy’s existence. By

providing specific orders which these individuals followed, Jackson was acting

within the supervisory context contemplated by the CCE statute.

 

Evidence presented by the government demonstrates that Jackson also

supervised Washington, Mabry, Phillips, and Watson. Numerous witnesses testified

that Washington acted as the cook who processed Jackson’s powder cocaine into

crack; at least one witness who attempted to purchase crack from Jackson was

referred to Washington; and on numerous occasions, Mabry and Phillips delivered

crack to purchasers on behalf of Jackson. While Washington, Mabry, Phillips, and

Watson each sold crack on Jackson’s behalf, the relationship between these

individuals and Jackson was beyond that of a mere buyer-seller. Even without Bruce,

whose connection to Jackson through Washington is somewhat tenuous, sufficient

evidence existed by which a jury could have found, beyond a reasonable doubt, that

Jackson violated the CCE statute by acting as a supervisor, manager, or organizer of

five or more persons and that he also was the principal administrator, organizer, and

leader of the enterprise. The same evidence supports the district court’s identical

determination at Jackson’s sentencing.

 

Jackson also claims that insufficient evidence supported the jury’s finding that

his offense involved at least 1.5 kilograms of crack. The district court agreed with

the jury’s drug quantity determination and imposed a life sentence pursuant to
11

§848(b). The district court’s drug quantity finding is not clearly erroneous. The

government introduced the testimony of many witnesses who purchased crack

directly from Jackson. One witness, Orlando Fisher, testified that he alone purchased

4 to 5 kilograms of cocaine, most of it having been processed into crack, from

Jackson, over a six-month period. Another witness, Jean St. Paul Cooper, testified

that he delivered to Jackson, from Chicago, 10 to 15 kilograms of crack. In short,

overwhelming evidence supports both the jury and the district court’s quantity

determinations.

 

With regard to Jackson’s insufficient evidence arguments, his attempts to

illustrate the perceived inconsistencies in witness testimony is unavailing. It is not

our position to judge the credibility of witnesses when reviewing the sufficiency of

the evidence. United States v. Anderson, 78 F.3d 420, 422-423 (8th Cir. 1996)

(citation omitted). Similarly, Jackson’s argument that the district court committed an

error in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), at sentencing is without merit. In Apprendi, the Supreme Court

held that “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to the jury, and proved beyond a reasonable

doubt.” Id. at 490, 120 S.Ct. at 2362-2363. Under the CCE statute, the statutory

maximum sentence is life in prison and Apprendi does not apply to this particular

situation. See United States v. Hill, 252 F.3d 919, 721 (7th Cir. 2001) cert. denied.

536 U.S. 962, 122 S.Ct. 2669, 153 L.Ed.2d 842 (2002). The district court was not

required to submit the principal organizer and drug quantity special interrogatories

to the jury. However, we find no error with this cautious approach as well as the

district court’s agreement with the jury’s factual findings. 

Mabry also raises an insufficient evidence argument, claiming the evidence did

not establish that he participated in a drug-related conspiracy and the district court

erred by denying his motion for judgment of acquittal. With respect to a motion for

judgment of acquittal, the standard of review on appeal is the same as that of the

district court. United States v. Earles, 113 F.3d 796, 802 (8th Cir. 1997). A court
12

should only grant a motion for judgment of acquittal “‘where the evidence, viewed

in the light most favorable to the government, is such that a reasonably minded jury

must have a reasonable doubt as to the existence of any of the essential elements of

the crime charged.’” Id. 802 (quoting United States v. Mundt, 846 F.2d 1157, 1158

(8th Cir. 1988)). A reasonable jury could have found Mabry guilty of participating in

a conspiracy to distribute cocaine and crack and we affirm the district court’s denial

of Mabry’s motion for judgment of acquittal.

“In order to prove the existence of a conspiracy, ‘the government must show

an agreement between at least two people and that the agreement’s objective was a

violation of the law.’” United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996)

(quoting United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995)). Proof of a

formal agreement is unnecessary; a tacit understanding is sufficient, United States v.

Hoelscher, 914 F.2d 1527, 1534, (8th Cir. 1990) cert. denied 498 U.S. 1090, 111 S.Ct.

971, 112 L.Ed.2d 1057 (1991), and can be proved by direct or circumstantial

evidence. Jenkins, 78 F.3d at 1287. “Although not sufficient by itself, association

or acquaintance among the defendants supports an inference of conspiracy.” United

States v. Sparks, 949 F.2d 1023, 1027 (8th Cir. 1991).

The evidence introduced at trial clearly demonstrated Mabry’s involvement

in distributing crack in Waterloo. However, Mabry acted in a capacity beyond that

of an independent crack dealer. Mabry accompanied Jackson on cocaine procurement

trips; assisted Jackson in breaking down powder cocaine so Washington could cook

the powder into crack; helped Jackson weigh and package the crack; aided in

recovering Jackson’s cocaine, which was stolen by John Humphrey; and delivered

crack with Jackson or on Jackson’s behalf on numerous occasions. After hearing this

substantial amount of circumstantial evidence connecting Mabry and Jackson, a

reasonable jury could have found, beyond a reasonable doubt, that Mabry conspired

with Jackson to distribute cocaine and crack. The district court appropriately denied

Mabry’s motion for a judgment of acquittal.
13

C. Withdrawal From the Conspiracy

Mabry also argues that the district court erred by failing to provide the jury

with an instruction concerning his defense theory that he withdrew from the

conspiracy. A district court’s jury instructions are reviewed for abuse of discretion.

See Mems v. City of St. Paul, Dept. of Fire and Safety, 327 F.3d 771, 781 (8th Cir.

2003). “Our review is limited in scope: we ask ‘whether the instructions, taken as a

whole and viewed in the light of the evidence and applicable law, fairly and

adequately submitted the issues in the case to the jury.’” Id. (quoting Wheeling

Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir.

2001)). In light of the evidence and the applicable law, the district court did not

abuse its discretion by failing to provide the jury with a withdrawal instruction. 

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. Zimmer, 299 F.3d 710, 718 (8th Cir.

2002) (citing United States v. Granados, 962 F.2d 767, 773 (8th Cir. 1992), United

States v. Askew, 958 F.2d 806, 812-13 (8th Cir. 1992)). A cessation of activities,

alone, is not sufficient to establish a withdrawal from the conspiracy. Zimmer, 299

F.3d at 718 (citing Granados, 962 F.2d at 773).

Mabry’s relationship with Jackson soured in 1999 after Jackson confronted and

accused Mabry of stealing crack. After this falling out, Mabry no longer traveled

with Jackson to procure cocaine. Moreover, Eugene Mitchell, who was working with

the government, testified that he was unable to purchase crack from Mabry because

Mabry did not have a significant quantity available. Mabry neither voluntarily ceased

his involvement in the drug distribution scheme nor contacted authorities in an

attempt to separate himself from Jackson. Mabry took no affirmative steps to

withdraw from the conspiracy, therefore, the district court properly denied his

request for a withdrawal instruction.
7 Levy was extradited from Canada and convicted in a separate trial of

conspiring to distribute cocaine and crack in July 2002. 

14

D. Jackson’s Remaining Arguments

Jackson argues that the special interrogatories created an impermissible

variance between the time frame of the conspiracy alleged in the indictment and the

proof at trial. During Jackson’s first term of imprisonment, he was housed with Basil

Levy,7

 a man who eventually became one of Jackson’s major cocaine suppliers. The

formation of this relationship apparently served as the basis for the superseding

indictment’s allegation that the conspiracy began in August 1993. At sentencing, the

district court found that the conspiracy began after Jackson was released from prison

in September 1995. Jackson argues that the jury was erroneously allowed to hear

evidence of drug transactions which took place prior to September 1995, and the

variance may have resulted in the jury attributing to him an improper drug quantity.

We reject Jackson’s argument.

 

 “‘[A] variance between the date in the pleading and the proof is not fatal if the

proof shows that the acts charged were committed within the period of the statute of

limitations and prior to the date of the [indictment], as long as the date is not a

material element of the offense, and the defendant is not prejudiced.’” United States

v. Duke, 940 F.2d 1113, 1120 (8th Cir. 1991) (quoting United States v. Collins, 690

F.2d 670, 673 (8th Cir. 1982)). The time period is not a material element of a

conspiracy offense and all of the evidence introduced at trial fell within the

conspiracy period alleged in the superseding indictment. Additionally, Jackson has

not argued that he was unable to adequately prepare for trial. Because “[a] defendant

is not prejudiced when he ‘could reasonably have anticipated the evidence presented

at trial from the indictment,’” Duke, 940 F.2d at 1120 (quoting United States v.

Shyres, 898 F.2d 647, 653 (8th Cir. 1990) cert. denied 498 U.S. 821, 111 S.Ct. 69, 112

L.Ed.2d 43 (1990), we find that no fatal variance has occurred. Moreover, if any

error occurred, it was harmless. Our review of the record indicates that the drug
15

quantity, which was attributed to the conspiracy prior to September 1995, resulted

from the minor distribution activities of Washington. This amount is trivial compared

to the total drug quantity the defendants were ultimately held responsible for

distributing. 

Next, Jackson argues that the district court erred in denying his motion for

downward departure. Jackson argues that law enforcement officers improperly

engaged him in undercover drug sales and purchases for the sole purpose of driving

up his sentence under the sentencing guidelines. Under the facts and circumstances

of this case, where law enforcement officers were investigating a large conspiracy,

this argument is without merit. Under such circumstances, law enforcement officers

are entitled to continue dealing with an individual with whom they have already

engaged in illegal transactions in order “to probe the depth and extent of a criminal

enterprise, to determine whether coconspirators exist, and to trace the drug deeper

into the distribution hierarchy.” United States v. Shephard, 4 F.3d 647, 649 (8th Cir.

1993) (citation omitted).

In seeking a downward departure, Jackson also argues that the United States

Probation Office (probation office) violated his constitutional right to due process by

participating in unlawful law enforcement conduct. The district court addressed this

issue at sentencing before determining that there were no grounds for a departure. It

is well settled that “[a] district court’s refusal to grant a downward departure is

generally unreviewable on appeal, unless the district court had an unconstitutional

motive or erroneously believed that it was without authority to grant the departure.”

United States v. Gonzalez-Lopez, 335 F.3d 793, 799 (8th Cir. 2003) (citing United

States v. Young, 315 F.3d 911, 914 (8th Cir. 2003) cert. denied ---U.S. ---, 123 S.Ct.

2108, 155 L.Ed.2d 1081 (2003). We have carefully reviewed this issue and find no

violation of Jackson’s constitutional right to due process. Accordingly, the district

court’s decision not to depart is not reviewable. 
16

Finally, Jackson argues that the district court’s imposition of a life sentence on

the CCE conviction and a provisional life sentence on the conspiracy conviction

constitutes double jeopardy. This court has previously determined that “[n]o double

jeopardy is created by the contingent imposition of a sentence because the provisional

sentence has no effect unless the first conviction and sentence is overturned.”

Jelinek, 57 F.3d at 660 n.5. In addition, Jelinek instructs that the proper procedure

for this court is to review the merits of both the CCE and conspiracy convictions, and,

if both are upheld, remand the case to the district court to vacate one of the

convictions. Id. (citations omitted). We have upheld the CCE conviction and the

imposition of a life sentence. Accordingly, we remand this case to the district court

to vacate Jackson’s conspiracy conviction. In all other respects, we affirm the

judgment of the district court. 

______________________________