1 District Judge of the Northern District of Illinois, sitting by

designation.

UNITED STATES COURT OF APPEAL

FIFTH CIRCUIT

_______________

No. 92-4302

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODERICK DEANDRA SPARKS, BONNIE RAY

DEWS, DAVID LEE SPIGNOR, and JOE

THOMAS TUCKER,

Defendants-Appellants.

__________________________________________________

Appeals from the United States District Court

For the Eastern District of Texas

__________________________________________________

(September 14, 1993)

Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL,

District Judge.1

EMILIO M. GARZA, Circuit Judge:

Defendants, Roderick Deandra Sparks ("Sparks"), Bonnie Ray

Dews ("Dews"), David Lee Spignor ("Spignor"), and Joe Thomas Tucker

("Tucker"), were jointly tried before a jury and convicted of

various offenses stemming from a conspiracy to distribute crack

cocaine. All four defendants were convicted of conspiring to

possess with intent to distribute a controlled substance, in
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violation of 21 U.S.C. § 846 (1988). Sparks, Dews, and Spignor

were found guilty of possession with intent to distribute within

1,000 feet of a public school, in violation of 21 U.S.C. § 860

(1988). Tucker was convicted of aiding and abetting Sparks, Dews,

Spignor, and ten other persons in possessing with intent to

distribute a controlled substance within 1,000 feet of a school.

Tucker also was convicted of conspiring to use and carry firearms

in relation to a drug offense, and of the completed substantive

firearms offense, in violation of 18 U.S.C. §§ 371 and 924(c)

(1988). Additionally, the jury found Dews guilty of possession

with intent to distribute a controlled substance, in violation of

21 U.S.C. § 841(a)(1) (1988). All four defendants now appeal their

convictions, and Sparks, Dews, and Spignor appeal their sentences.

We affirm the district court in all respects.

I

From 1987 until early 1991, Tucker operated an extensive

conspiracy to distribute crack cocaine from property he owned in

Tyler, Texas ("the field"). Tucker would obtain the crack cocaine

in an uncut form and cut it into smaller "rocks" that could be sold

at the field to crack users. Tucker, who controlled the hours and

methods of operation and number of persons selling crack at the

field, employed Sparks and Dews, among others, to sell crack at the

field. Tucker also employed Spignor to construct a shed on the

field, in which crack was stored, and later to sell cocaine. As

the conspiracy grew, it became more profitable, netting up to $5000
 

2 The four defendants also received terms of supervised release and

special assessments. Additionally, the jury returned a special verdict

ordering the forfeiture of real property and a vehicle owned by Tucker.

 

3 Dews and Spignor attack the sufficiency of the evidence to support

their conspiracy convictions. Spignor and Tucker attack the sufficiency of

the evidence to support their convictions for possession with intent to

distribute a controlled substance within 1,000 feet of a public school. 

Spignor and Tucker also argue that they were subjected to selective

prosecution, which requires a reversal of their convictions and a dismissal of

the indictment.

Sparks raises three additional arguments: (a) that the district court

erred in admitting evidence of other crimes, wrongs, or acts over his Fed. R.

Evid. 404(b) objection; (b) that the district court erred in admitting a coconspirator's testimony; and (c) that the district court erred in admitting

the testimony of a government witness even though the government failed to

comply with the disclosure provisions of the Jencks Act, 18 U.S.C. § 3500

(1988). Tucker attacks the district court's decision finding him

competent to stand trial. He also challenges the sufficiency of the evidence

to support his convictions on both the firearms counts and a single aiding and

abetting count. Dews contends that the district court erred in both denying

his motion to sever and permitting a co-conspirator to testify against him.

Three defendants argue that the district court erred with regard to

several aspects of their sentences. Dews and Spignor contend that the

district court erred in (a) enhancing their sentences for possession of a

firearm during the course of the offenses, (b) holding them accountable for an

excessive quantity of drugs, (c) refusing to decrease their sentences by

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a day in crack sales. Tucker's sellers also traded crack for food,

electronic equipment, guns, clothes, and sex.

A cooperative investigation by local and federal authorities

led to the arrests of a number of participants in the conspiracy,

including Sparks, Dews, Spignor, and Tucker, all of whom were

charged in an indictment alleging a number of drug-related

offenses. A jury found all four defendants guilty of the charged

offenses. The district court sentenced Sparks to a prison term of

168 months. Dews received a term of 188 months. Spignor received

a 292 month term of imprisonment. The district court sentenced

Tucker to a term of 292 months on the drug and firearms conspiracy

counts and a consecutive 60 month term on the firearms count.2 The

defendants now appeal their convictions and sentences.3 
granting them minimal or minor participant status, and (d) refusing to

downwardly depart from the Federal Sentencing Guidelines. Sparks argues that

the district court violated his right to due process of law by imposing more

stringent sentences on defendants who exercised their constitutional right to

a trial by jury. Dews asserts that the district court erred by failing to

make a specific finding regarding the quantity of drugs involved in the

conspiracy reasonably foreseeable to him and by failing to apply the rule of

lenity when sentencing him.

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II

Joint Claims

A

Dews and Spignor contend that the evidence was insufficient to

support their convictions for conspiracy to possess with intent to

distribute a controlled substance. Spignor and Tucker argue that

the evidence was insufficient to support their convictions for

possession with intent to distribute a controlled substance within

1,000 feet of a public school. These claims are without merit.

(i)

"In deciding the sufficiency of the evidence, we determine

whether, viewing the evidence and the inferences that may be drawn

from it in the light most favorable to the verdict, a rational jury

could have found the essential elements of the offenses beyond a

reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d

190, 193 (5th Cir.), cert. denied, 112 S. Ct. 2952, 119 L. Ed. 2d

575 (1992). "It is not necessary that the evidence exclude every

rational hypothesis of innocence or be wholly inconsistent with

every conclusion except guilt, provided a reasonable trier of fact

could find the evidence establishes guilt beyond a reasonable

doubt." Id. "We accept all credibility choices that tend to
 

4 A conspiracy consists of "an agreement by two or more persons to

commit one or more unlawful acts and an overt act by one of the conspirators

in furtherance of the conspiracy." United States v. Romeros, 600 F.2d 1104,

1106 (5th Cir. 1979), cert. denied, 444 U.S. 1077, 100 S. Ct. 1025, 62 L. Ed.

2d 759 (1980).

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support the jury's verdict." United States v. Anderson, 933 F.2d

1261, 1274 (5th Cir. 1991). We apply this standard of review here

because Dews and Spignor properly preserved their sufficiency

arguments by moving for a judgment of acquittal at trial. See

United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991).

In order to prove that a defendant conspired to possess crack

with intent to distribute it, the government must prove beyond a

reasonable doubt that (1) there was a conspiracy4 to possess with

intent to distribute crack, (2) the defendant knew about the

conspiracy, and (3) the defendant voluntarily joined the

conspiracy. See United States v. Hernandez-Palacios, 838 F.2d

1346, 1348 (5th Cir. 1988). "No evidence of overt conduct is

required. A conspiracy agreement may be tacit, and the trier of

fact may infer agreement from circumstantial evidence." Id.

(footnotes omitted).

(ii)

An abundance of evidence presented by the prosecution

established the existence of the conspiracy and the knowledge of

and voluntary participation in the conspiracy by both Dews and

Spignor. Two co-conspirators testified that Dews served as a crack

seller and lookout for Tucker's operations at the field. Moreover,

agent Marvin Richardson testified that Dews both sold crack to him
 

5 We review Tucker's insufficiency claim under the more stringent

"manifest injustice" standard, rather than the "rational jury standard,

because he did not preserve it by moving for a judgment of acquittal following

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at the field and arranged for him to purchase a large quantity of

cocaine at another location. Richardson's testimony regarding

these purchases was corroborated by yet another co-conspirator.

Two co-conspirators also identified Spignor as a member of the

conspiracy who sold crack for Tucker at the field. Moreover, the

record demonstrated that Spignor helped to construct a shed used

for the storage of crack at the field and attempted on one occasion

to sell crack to agent Richardson, who declined because he had

already purchased crack from other sellers at the field.

Richardson testified that Spignor complained on this occasion that

the other sellers were selling crack during the sales period that

Tucker had allocated to him, thereby demonstrating his knowledge of

and participation in the conspiracy. 

Although some of the government's evidence regarding the

participation by Dews and Spignor in the conspiracy may have been

circumstantial, it was more than sufficient to support the jury's

verdict. See United States v. Martinez, 975 F.2d 159, 162 (5th

Cir. 1992), cert. denied, 113 S. Ct. 1346, 122 L. Ed. 2d 728

(1993). Consequently, we reject their insufficiency of the

evidence arguments.

(iii)

The evidence also supports the jury's conclusion that Spignor

and Tucker5 were guilty of possessing with intent to distribute
either the close of the government's case or the trial. See discussion infra

part V.B. However, Tucker's contention is without merit under either the

rational jury or the manifest injustice standard.

 

6 The defendants do not contend that the evidence failed

to demonstrate that they possessed a controlled substance with

the intent to distribute it, but only that they did not possess

any controlled substances within 1,000 feet of a public school.

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crack within 1,000 feet of a public school.6 At trial, Charlie

Thomas, a city of Tyler engineer, identified an aerial photograph

of the area encompassing the field and the nearby public school.

Thomas testified that the photograph demonstrated that the field

was located within 1,000 feet of the school. Neither Spignor nor

Tucker presented any contrary evidence. Although cross-examination

did create an issue as to Thomas' credibility, the jury resolved

the issue in favor of the government. Because "[w]e accept all

credibility choices that tend to support the jury's verdict,"

United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir. 1991), we

find sufficient evidence supporting the convictions.

B

Spignor and Tucker contend that the district court erred in

failing to dismiss the indictment for selective prosecution. They

argue that the government indicted and prosecuted all the male coconspirators while failing to indict or prosecute any women coconspirators. Spignor and Tucker argue that this proves purposeful

discrimination by the government.

Generally, the government has broad discretion in determining

who to prosecute. See Wayte v. United States, 470 U.S. 598, 607,
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105 S. Ct. 1524, 1530, 84 L. Ed. 2d 547 (1985). Consequently,

Spignor and Tucker bear a heavy burden in their attempt to

demonstrate unconstitutional selective prosecution. See United

States v. Jennings, 724 F.2d 436, 445 (5th Cir.), cert. denied, 467

U.S. 1227, 104 S. Ct. 2682, 81 L. Ed. 2d 877 (1984). A prima facie

showing of unconstitutional selective prosecution requires Spignor

and Tucker first to demonstrate that they were singled out for

prosecution while others similarly situated who committed the same

crime were not prosecuted. Spignor and Tucker next must show that

the government's discriminatory selection of them for prosecution

was invidious or done in bad faith))i.e., that the government

selected its course of prosecution "because of," rather than "in

spite of," its adverse effect upon an identifiable group. Wayte,

470 U.S. at 610, 105 S. Ct. at 1532; United States v. Ramirez, 765

F.2d 438, 440 (5th Cir. 1985), cert. denied, 474 U.S. 1063, 106 S.

Ct. 812, 88 L. Ed. 2d 786 (1986).

Spignor and Tucker fail to satisfy either prong of a prima

facie selective prosecution claim. They argue that the government

dropped charges against one female named in the indictment, but

neglect to point out that she pled guilty in state court to

possession of a controlled substance and originally was listed as

a prosecution witness. Tucker further alleges that "other female

witnesses and/or accomplices were not charged or their federal

charges were dismissed or agreements were reached not to prosecute

on other violations." The record, however, reflects that at least
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one other female pled guilty to a charge of possession of a

controlled substance, then testified as a government witness in

exchange for other charges being dropped. There certainly is

nothing inherently invidious about such a plea bargain, see

Jennings, 724 F.2d at 446 (stating that while "persons cooperating

with the government in this case . . . were not prosecuted while

Jennings was does not come even close to meeting the `similarly

situated' branch of the selective prosecution defense"), and

Spignor and Tucker fail to point out how the agreement demonstrates

bad faith by the government. See Ramirez, 765 F.2d at 440 (holding

that "conclusional allegations of impermissible motive are not

sufficient" to demonstrate the government acted in bad faith). As

Spignor and Tucker fail to prove that the government discriminated

against them in any way, we reject their claim of unconstitutional

selective prosecution.

III

Roderick Deandra Sparks

A

Sparks initially complains that the district court erred in

admitting testimony from officer Paul Black that Contessa Williams,

a co-conspirator who testified for the government, was identified

by Sparks as a government informant and, as a result, was assaulted

by an unknown person. Sparks argues that Black's testimony

constituted evidence of prior acts of misconduct, which is
 

7 Rule 404(b) states that evidence of other crimes,

wrongs,or acts is admissible under certain conditions,

provided that upon request by the accused, the

prosecution in a criminal case shall provide reasonable

notice in advance of trial, or during trial if the

court excuses pretrial notice on good cause shown, of

the general nature of any such evidence it intends to

introduce at trial.

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inadmissible under Fed. R. Evid. 404(b).7 Sparks seeks a new trial

because the government gave no pre-trial notice of its intent to

use such evidence and also because the government procured Black's

testimony on this matter for the sole purpose of unfairly

prejudicing the jury against Sparks.

Based upon information received from Williams, the government

indicted as a co-defendant an individual named Tim Johnson. At

trial, however, Williams informed the government that it had

indicted the wrong person, whereupon charges against Johnson were

dismissed. Williams then proceeded to testify against the

remaining defendants. On cross-examination, defense counsel

elicited from Williams testimony that the government never asked

her to positively identify Johnson before trial began. Counsel for

Sparks also attempted to demonstrate that Williams was biased

against Sparks because of several arguments they had. Williams

explained that she had argued with Sparks only after Sparks stopped

selling crack to her because he believed that she was an informant.

Officer Black later testified for the government. On crossexamination, defense counsel challenged both his credibility and

the credibility of Williams by repeated questioning about the
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erroneous indictment of Johnson. On redirect examination, Black

stated that Williams had not been shown Johnson's picture before

trial because the government had relocated her outside of Tyler as

a result of two assaults upon her. When asked what prompted these

assaults, Black stated, "Because she had been compromised in this

case by Mr. Sparks." After Sparks objected under Rule 404(b),

Black testified that he did not mean to imply that Sparks or any of

the other three defendants actually had assaulted Williams, but

only that Sparks had seen Williams in the company of federal agents

and shortly after that it was known on the street that Williams was

an informant. Sparks made no further objection, nor did he request

any cautionary instruction.

We find Sparks' contention that Black's testimony was

inadmissible under Rule 404(b) to be without merit. The government

sought to explain the circumstances of the erroneous indictment

only after defense counsel had repeatedly attacked both Williams'

credibility and the government's credibility for not showing

Williams a picture of Johnson before indicting him. See Jennings,

724 F.2d at 443 (stating that the prosecution is not obliged to

stand idly by while the credibility of its witnesses is

challenged). Black's testimony that Sparks had compromised

Williams merely was cumulative of Williams' earlier testimony that

Sparks had seen her in the presence of federal agents and

thereafter refused to sell crack to her, and Sparks failed to

object to her testimony. See United States v. Allie, 978 F.2d
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1401, 1408-09 (5th Cir. 1992) (stating that the improper admission

of evidence that is merely cumulative constitutes harmless error),

cert. denied, 113 S. Ct. 1662, 123 L. Ed. 2d 281 (1993). Moreover,

Black clarified his testimony by stating that he did not mean to

imply that Sparks actually assaulted Williams, and the district

court's instruction to the jury that the defendants were not on

trial for any conduct not alleged in the indictment cured any

alleged harm. See United States v. Fragoso, 978 F.2d 896, 902 (5th

Cir. 1992) (stating that a district court's instruction may cure

error), cert. denied, 113 S. Ct. 1664, 123 L. Ed. 2d 282 (1993).

We thus hold that Sparks' Rule 404(b) claim is without merit.

B

Sparks argues that the district court erred in admitting two

pill bottles containing crack that were confiscated from him.

Sparks asserts that because the officer who seized the bottles did

not personally initial them and thus could not "positively

identify" them, the district court "lacked sufficient authenticity

of the evidence to reasonably conclude that [the] disputed

evidence's foundation had been established."

Evaluating the admissibility of evidence is a matter within

the sound discretion of the district court. United States v.

Jardina, 747 F.2d 945, 950 (5th Cir. 1984), cert. denied, 470 U.S.

1058, 105 S. Ct. 1773, 84 L. Ed. 2d 833 (1985). In cases where a

defendant questions whether the evidence offered is the same as the

items actually seized, the role of the district court is to
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determine whether the government has made a prima facie showing of

authenticity. If the government meets its burden, the evidence

should be admitted, and the jury has the ultimate responsibility

for deciding the authenticity issue. United States v. Logan, 949

F.2d 1370, 1377-78 (5th Cir. 1991), cert. denied, 112 S. Ct. 1982

(1992).

The district court did not abuse its discretion in admitting

the disputed evidence. Officer Bobby Stark, who seized the bottles

of crack from Sparks, testified that the bottles admitted into

evidence were the same bottles that he had seized. Stark also

testified that after he gave the bottles to Officer Richard Drew,

who was responsible for collecting all evidence seized during the

raid, the bottles were placed into a sealed envelope on which Drew

wrote Stark's name. The envelope then was stored in an evidence

locker at the police department until Sergeant Frank Blake

transported it to a laboratory for chemical analysis. Blake

testified that he took the sealed envelope to the laboratory. A

chemist at the laboratory then testified that the bottles in the

envelope contained crack cocaine. While Drew, the officer

responsible for collecting the evidence, did not testify, this does

not render the bottles inadmissible. The break in the chain of

custody simply goes to the weight of the evidence, not its

admissibility. See United States v. Shaw, 920 F.2d 1225, 1229-30

(5th Cir.), cert. denied, 111 S. Ct. 2038, 114 L. Ed. 2d 122 (1991)

(noting that a gap in the chain of custody is a matter of weight
 

8 18 U.S.C. § 3500 provides:

(b) After a witness called by the United States has

testified on direct examination, the court shall, on

motion of the defendant, order the United States to

produce any statement . . . of the witness in the

possession of the United States which relates to the

subject matter as to which the witness has testified. .

. .

. . . .

(d) If the United States elects not to comply with an

order of the court under [this section] to deliver to

the defendant any such statement, or such portion

thereof as the court may direct, the court shall strike

from the record the testimony of the witness . . . .

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rather than admissibility). The government, therefore, made out a

prima facie showing of admissibility, and the district court

properly admitted the evidence.

C

Sparks finally contends that the government failed to produce

material required to be disclosed pursuant to the Jencks Act, 18

U.S.C. § 3500,8 and that this failure required the district court

to strike the testimony of Bobby Harper, an informant for the

government. The government, on the other hand, contends that it

produced all Jencks Act material. We agree.

Harper testified as to three occasions when he purchased crack

from Sparks and another seller at the field. Harper secretly

recorded each transaction with equipment provided by government

agents and testified that he had signed detailed reports relating

to each transaction. Sparks admits the government produced these

reports. Harper, however, later testified that the reports he

signed were "transcripts of the deal going down," not mere
 

9 Other evidence also supports this conclusion. For

example, Harper testified that the statements that he signed were

approximately two pages each, but each drug purchase involved

from five to twenty minutes of conversation. In addition, Harper

signed a statement relating the circumstances of his purchase of

crack from Sparks, but no tape recording of that transaction

exists because the machine malfunctioned on that occasion. 

Finally, the district court required the government to produce

for an in camera inspection all materials relating to Harper and

found no transcripts signed by Harper.

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summaries of the transactions. Sparks then requested that the

government produce the transcripts; the government responded that

Harper never signed any transcripts. Despite the government's

repeated explanations that it produced everything Harper signed,

Sparks still insists that the government failed to produce the

"transcripts."

The record fully supports the government's explanation that

Harper was mistaken about what he had signed. The agent

responsible for preparing the reports signed by Harper testified

that he prepared only summaries of the transactions, not

transcripts of the tapes. Moreover, Harper testified that the

statements he reviewed before testifying were the same ones that he

had previously signed; these were then identified as the reports

produced by the government.9 Sparks also has not demonstrated a

need for the transcripts, as the government produced the actual

tape recordings of the transactions. See United States v.

McKenzie, 768 F.2d 602, 609 (5th Cir. 1985), cert. denied, 474 U.S.

1086, 106 S. Ct. 861, 88 L. Ed. 2d 900 (1986) (holding that the

government's failure to produce a transcript of a witness interview
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did not require reversal because it provided only cumulative

impeachment material). Moreover, "[u]nless there are concrete

facts or factors indicating that [the prosecutor, an officer of the

court,] has failed to comply with the mandate of the law, the

[district court] could accept his assurances that he has." United

States v. Resnick, 483 F.2d 354, 358 (5th Cir.), cert. denied, 414

U.S. 1008, 94 S. Ct. 370, 38 L. Ed. 2d 246 (1973); see also

United States v. Williams, 604 F.2d 1102, 1115-16 (8th Cir. 1979).

Accordingly, the district court did not err in refusing to strike

Harper's testimony from the record.

IV

Bonnie Ray Dews

A

Dews contends that the district court erred in denying his

motion for severance under Fed. R. Crim. P. 14. Denial of a motion

for severance is reviewable only for abuse of discretion. See

Zafiro v. United States, 113 S. Ct. 933, 939, 122 L. Ed. 2d 317

(1993); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th

Cir.), cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d

312 (1989). "Reversal is warranted only when the appellant can

demonstrate compelling prejudice against which the trial court was

unable to afford protection." Arzola-Amaya, 867 F.2d at 1516.

Moreover, the general rule is that persons indicted together should

be tried together, especially in conspiracy cases. Id. Dews

presents no valid rationale for departing from this rule.
 

10 See United States v. Valdez, 861 F.2d 427, 432-33 (5th

Cir. 1988) (stating that conclusory assertions do not establish

error), cert. denied, 489 U.S. 1083, 109 S. Ct. 1539, 103 L. Ed.

2d 844 (1989); United States v. Williams, 809 F.2d 1072, 1084

(5th Cir.) (holding that mere assertions that a co-defendant

would testify if severance was granted did not establish grounds

for severance), cert. denied, 484 U.S. 896, 108 S. Ct. 228, 98 L.

Ed. 2d 187 (1987); United States v. DeSimone, 660 F.2d 532, 539-

40 (5th Cir. Unit B 1981) (same), cert. denied, 455 U.S. 1027,

102 S. Ct. 1732, 79 L. Ed. 2d 149 (1982); United States v. Diez,

515 F.2d 892, 902-03 (5th Cir. 1975) (same), cert. denied, 423

U.S. 1052, 96 S. Ct. 780, 46 L. Ed. 2d 641 (1976).

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Dews argues that he was entitled to a severance because (a) he

was at the field only once during the existence of the conspiracy,

(b) he was the only person charged with unlawful conduct that

supposedly occurred off of the field, (c) other co-defendants and

unindicted co-conspirators would have testified on his behalf had

his motion been granted, and (d) being tried with the other

defendants created a prejudicial spillover effect. We disagree.

Multiple witnesses testified that Dews was one of Tucker's

employees and placed him at the field as early as 1989, two years

before he was arrested there. Moreover, the unlawful conduct that

Dews contends occurred away from the field actually began at the

field. Dews' conclusory allegation that other persons would have

testified on his behalf had his motion to sever been granted does

not demonstrate an abuse of discretion by the district court.10

Moreover, the mere presence of a spillover effect does not

ordinarily warrant severance. United States v. Rocha, 916 F.2d

219, 228 (5th Cir. 1990), cert. denied, 111 S. Ct. 2057, 114 L. Ed.

2d 462 (1991). Furthermore, the district court properly instructed
 

11 Paul Dews is the cousin of Bonnie Ray Dews.

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the jury to limit evidence to the appropriate defendant, and

"`juries are presumed to follow their instructions.'" Zafiro, 113

S. Ct. at 939 (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107

S. Ct. 1702, 95 L. Ed. 2d 176 (1987)). Accordingly, the district

court did not abuse its discretion by denying Dews' motion for

severance.

B

Dews challenges the district court's admission of the

testimony of co-conspirator Paul Dews.11 On the first day of the

trial, Paul Dews accepted the government's offer of a plea bargain

that required him to testify against his fellow conspirators, and

the government notified defense counsel that Paul Dews would

testify. Dews argues that the eleventh hour acceptance by Paul

Dews of the government's offer, which also was made to him, and the

testimony from Paul Dews created unfair surprise and prejudice

because "proper preparation for cross-examination of the witness

was not possible." Dews, however, failed to ask the district court

for a continuance with which the alleged surprise. See United

States v. Jennings, 724 F.2d 436, 445 (5th Cir.) (stating that the

normal remedy for surprise is to request a recess), cert. denied,

467 U.S. 1227, 104 S. Ct. 2682, 81 L. Ed. 2d 877 (1984). As Dews

merely relies on conclusory allegations and fails to point out any

specific injury he suffered, we reject his contention that the

district court erred in allowing Paul Dews to testify. See Valdez,
 

12 Tucker also alleges that the government's witnesses intentionally

distorted the results of his psychological evaluation. Tucker's trial counsel

testified at a pretrial hearing regarding Tucker's incompetency claim that he

could not adequately communicate with Tucker and believed Tucker did not

understand the consequences of the charges against him.

 

13 Section 4241 provides:

If, after the hearing [to determine competency], the court finds

by a preponderance of the evidence that the defendant is presently

suffering from a mental disease or defect rendering him mentally

incompetent to the extent that he is unable to understand the

nature and consequences of the proceedings against him or to

assist properly in his defense, the court shall commit the

defendant to the custody of the Attorney General. . . .

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861 F.2d at 432-33 (stating that conclusory assertions do not

establish error).

V

Joe Thomas Tucker

A

Prior to trial, the district court granted Tucker's motion for

a psychiatric examination. After hearing testimony from both a

psychiatrist and a psychologist who examined Tucker, the district

court found Tucker competent to stand trial. Tucker, relying

primarily on findings by the Veterans Administration in the 1970s

that he was a paranoid schizophrenic,12 argues that the district

court erred in finding him competent to stand trial.

The test for competency, governed by 18 U.S.C. § 4241 (1988),13

is twofold. First, the defendant must have "sufficient present

ability to consult with his lawyer with a reasonable degree of

rational understanding." Dusky v. United States, 362 U.S. 402, 402

80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (1960). Second, the defendant

must have "a rational as well as factual understanding of the
 

14 See Fed.R.Crim.P. 29.

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proceedings against him." Id. After a careful review of the

record, we conclude that the government demonstrated that Tucker

was competent to stand trial. Dr. William Gold, the psychiatrist

who examined Tucker, testified that Tucker was able to understand

the charges against him and to assist his attorney in his defense.

Dr. Michael Morrison, a psychologist who also met with Tucker,

testified that Tucker understood the charges against him, seemed to

understand the nature and consequences of the proceedings against

him, and had the ability to aid his attorney in his defense.

Because this testimony amply supports the district court's

conclusion, the district court's ruling that Tucker was competent

to stand trial was not clearly erroneous or arbitrary. See United

States v. Birdsell, 775 F.2d 645, 648 (5th Cir. 1985).

B

Tucker challenges the sufficiency of the evidence supporting

his conviction on one of the substantive drug counts and his

convictions on the weapons charges. Because Tucker failed to move

for a judgment of acquittal either at the close of the government's

case or following trial,14 "[w]e are limited to the determination

of whether there was a manifest miscarriage of justice. Such a

miscarriage would exist only if the record is devoid of evidence

pointing to guilt, or . . . [if] the evidence on a key element of

the offense was so tenuous that a conviction would be shocking."

United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991)
 

15 Peggy Tucker is the sister of defendant Tucker.

-21-

(citations omitted). "In making this determination, the evidence,

as with the regular standard for review of insufficiency of

evidence claims, must be considered `in the light most favorable to

the government, giving the government the benefit of all reasonable

inferences and credibility choices.'" United States v. Ruiz, 860

F.2d 615, 617 (5th Cir. 1988) (quoting United States v. HernandezPalacios, 838 F.2d 1346, 1348 (5th Cir. 1988)).

(i)

Count 2 charged Tucker with aiding and abetting Peggy Tucker's

possession with intent to distribute a controlled substance within

1,000 feet of a public school. In April 1989 as two police

officers approached the field, they observed Peggy Tucker15 sitting

in the front yard. When she noticed the officers approaching,

Peggy Tucker began running toward the back of the field. As she

ran, approximately 47 rocks of crack fell onto the ground from her

open purse. When the officers caught up to her, she was attempting

to bury a large rock of crack under a tree near the rear of the

field. Tucker contends that because he was not present at the

field when Peggy Tucker was arrested, his conviction rests upon

"conjecture, surmise, suspicion and speculation."

The evidence supporting Tucker's conviction is sufficient if

it demonstrates Tucker's "association and participation with the

venture . . . in a way calculated to bring about that venture's

success." United States v. Salazar, 958 F.2d 1285, 1292 (5th
-22-

Cir.), cert. denied, 113 S. Ct. 185, 121 L. Ed. 2d 129 (1992).

Thus Tucker, to be an aider and abettor, need not have been present

at the field when Peggy Tucker was arrested nor need he actually

have furnished the crack that Peggy Tucker possessed. Id. The

government presented sufficient evidence supporting Tucker's

conviction by demonstrating that Peggy Tucker possessed with intent

to distribute cocaine within 1,000 feet of a public school and also

that Tucker exercised complete control over all persons, including

Peggy Tucker, who sold cocaine at the field. Other evidence

supporting Tucker's conviction includes proof of Peggy Tucker's

close ties to the conspiracy and the fact that Tucker's sellers

occasionally sold crack at the field for Peggy Tucker.

Accordingly, we find sufficient evidence to uphold Tucker's

conviction.

(ii)

Tucker further contends that the evidence was insufficient to

support his convictions for conspiracy to use and carry firearms in

relation to a drug offense and the completed offense using and

carrying firearms in relation to a drug offense. As with his other

claims, we find his argument without merit.

When executing a valid search warrant at the field in October

1990, officers discovered a shotgun in a truck owned by Tucker and

a pistol in a shed identified by witnesses as Tucker's office. The

record contains substantial evidence that Tucker was in sole

control of both the field and those persons who sold crack there,
-23-

allowed his sellers to exchange crack for firearms on several

occasions, told the sellers of the location of the firearms and to

use them for protection if the need arose, and had admitted to a

federal agent that he owned the weapons and kept them at the field

for protection. We find that this evidence is sufficient to

convict Tucker for the firearms offenses. See Smith v. United

States, 113 S. Ct. 2050, 2054, 124 L. Ed. 2d 138 (1993) (holding

that trading drugs for firearms constitutes "use" of the firearms);

United States v. Smith, 930 F.2d 1081, 1086 (5th Cir. 1991)

(holding that possession by a co-conspirator is sufficient to

sustain a possession of firearms conviction); United States v.

Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989) (stating that

a firearms conviction is demonstrated if a gun was available to

provide protection for the defendant in connection with his drug

related activities).

VI

Sentencing

Sparks, Dews, and Spignor appeal the sentences imposed by the

district court under the Sentencing Guidelines. We will affirm the

district court's sentence "so long as it results from a correct

application of the guidelines to factual findings which are not

clearly erroneous." United States v. Sarasti, 869 F.2d 805, 806

(5th Cir. 1989). "A factual finding is not clearly erroneous as

long as it is plausible in light of the record as a whole." United

States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
 

16 Section 3B1.2 provides:

Based on the defendant's role in the offense, decrease the offense

level as follows:

(a) If the defendant was a minimal participant in any criminal

activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal

activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

United States Sentencing Commission, Guidelines Manual, § 3B1.2 (Nov. 1991).

-24-

A

Dews and Spignor argue that they are entitled to a downward

adjustment under § 3B1.2 of the sentencing guidelines for minimal

or minor participation in the offenses.16 Both argue that they were

only slightly involved with the conspiracy and therefore are less

culpable than the other conspirators. Section 3B1.1, however, is

designed to reduce a sentence only when the defendant is

substantially less culpable than the average participant in the

offense. See United States v. Buenrostro, 868 F.2d 135, 138 (5th

Cir. 1989), cert. denied, 495 U.S. 923, 110 S. Ct. 1957, 109 L. Ed.

2d 319 (1990). The district court denied the requests for downward

adjustment because it did not find that either Dews or Spignor was

substantially less culpable than the average participant.

The argument that Dews and Spignor were minimal or minor

participants is belied by the record. Dews made at least one sale

of crack to an undercover agent, was identified by at least two coconspirators as an employee of Tucker, and arranged at the field

for an agent to purchase cocaine at another location. Spignor
 

17 Relying on his minor participant argument, Dews further

contends that the district court committed error in refusing to

downwardly depart from the sentencing guidelines. Because we

reject his minimal or minor participant claim, we thus reject his

downward departure contention.

 

18 Contrary to Dews' intimations, we previously endorsed the

reasonable foreseeability standard found in the Guidelines. See United States

v. Aguilara-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990).

-25-

constructed a shed on the field that was used as Tucker's personal

office, was identified by at least two co-conspirators as one of

Tucker's sellers, and attempted to sell crack to an undercover

agent on at least one occasion. Consequently, the district court's

finding that Dews and Spignor were not minimal or minor

participants is not clearly erroneous, and we will not disturb it.17

B

(i)

Sparks, Dews, and Spignor assert that the district court erred

by increasing their offense levels under § 2D1.1(b)(1) of the

Sentencing Guidelines for possession of a firearm. The district

court found that the possession of firearms by Tucker, see

discussion supra part V.B.(ii), was reasonably foreseeable to

Sparks, Dews, and Spignor.18 As a result, the district court found

that enhancement for possession of a firearm was appropriate. We

agree.

"The adjustment [for possession of a firearm] should be

applied if the weapon was present, unless it is clearly improbable

that the weapon was connected to the offense." U.S.S.G. § 2D1.1,

comment. (n.3). "The burden of proof in this respect is on the
 

19 For example, he constructed a wooden privacy fence around the field,

placed wooden stumps in front of the fence to prevent police vehicles from

gaining access to the field by smashing down the fence, built a kennel in

which he could safely store crack and keep guard dogs, continuously operated a

"burn barrel" and a fireplace in which crack could be destroyed in the event

of a police raid, and employed several individuals to watch for police raids.

-26-

government under a preponderance of the evidence standard." United

States v. Aguilera-Zapata, 901 F. 2d 1209, 1215 (5th Cir.1990). We

find that the government met its burden. The record reflects that

Sparks once brandished a pistol while chasing someone off the field

who had smoked his crack, sellers at the field exchanged crack for

firearms, Tucker went to great lengths to protect the conspiracy

from detection,19 and Tucker knowingly and intentionally possessed

firearms at the field in furtherance of the conspiracy. See

Aguilera-Zapata, 901 F.2d at 1215 (stating that "sentencing courts

[in drug cases] may ordinarily infer that a defendant should have

foreseen a co-defendant's possession of a dangerous weapon, such as

a firearm, if the government demonstrates that another participant

knowingly possessed the weapon while he and the defendant committed

the offense"). Accordingly, the district court's finding that

Tucker's possession of a firearm was reasonably foreseeable to the

other defendants was not clearly erroneous.

(ii)

Sparks also contends that he was denied due process of law

because only those co-defendants who elected to go to trial, as

opposed to those who pled guilty, had their sentences enhanced for

possession of firearms. Sparks, however, may not use the sentences

received by his co-defendants as yardsticks for the sentence he
 

20 The presentence investigative report ("PSR") found that

57.98 grams of crack cocaine were distributed within 1,000 feet

of a public school and properly attributable to both Dews and

Spignor. The report also found that the total amount of drugs

chargeable to the conspiracy was 73.03 grams of cocaine base and

116.2 grams of marijuana. The district court adopted these

findings.

 

21 A defendant's base offense level is determined on the basis of

all acts and omissions committed or aided and abetted by the

defendant, or for which the defendant would be otherwise

accountable, that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that offense,

or that otherwise were in furtherance of that offense.

-27-

argues he should have received. United States v. Harrison, 918

F.2d 469, 475 (5th Cir. 1990). This is especially true when the

co-defendants pled guilty and cooperated with the government. The

sentences of such co-defendants "are obviously the result of

leniency and are not relevant to the present constitutional

inquiry." United States v. Devine, 934 F.2d 1325, 1338-39 (5th

Cir. 1991), cert. denied, 112 S. Ct. 954, 117 L. Ed. 2d 121 (1992).

Sparks elucidates no other facts in support of his due process

claim. Consequently, we find his claim to be without merit.

C

Dews and Spignor also contend that the district court erred by

calculating their sentences on the basis of sales of crack not only

by themselves, but also by their co-conspirators.20 They argue that

it was not reasonably foreseeable to them that the conspiracy would

involve such a large quantity of drugs and the district court thus

should not have taken that amount into account when determining

their respective base offense levels. See U.S.S.G. § 1B1.3(a)(1).21
U.S.S.G. § 1B1.3(a)(1) (Nov. 1991). "Conduct `for which the defendant would

otherwise be accountable' . . . includes conduct of others in furtherance of

the execution of the jointly-undertaken criminal activity that was reasonably

foreseeable by the defendant." U.S.S.G. § 1B1.3, comment. (n.1).

-28-

Spignor also argues that he was charged with drug quantities not

properly attributable to him because of his late entry into the

conspiracy.

(i)

Dews contends that the district court erred in failing to make

a specific finding that he knew or reasonably should have foreseen

the involvement of a particular quantity of drugs. See id. The

PSR found that Dews and his co-conspirators were responsible for

distributing 57.98 grams of cocaine base within 1,000 feet of a

public school. In determining an appropriate sentence, the PSR

then found that Dews was responsible for that amount. Dews

objected to this finding both in writing and at the sentencing

hearing, arguing that it was not reasonably foreseeable to him that

his co-conspirators would distribute such a large quantity of

drugs. At the sentencing hearing, the district court overruled his

objection. Dews now argues that because the district court did not

explicitly state that it was reasonably foreseeable to Dews that

the conspiracy would be responsible for the distribution of 57.98

grams of cocaine, his sentence should be vacated and the case

remanded. After closely examining this contention, we determine

that it is without merit.
 

22 Rule 32(c)(3)(D) provides:

If the comments of the defendant and the defendant's

counsel or testimony or other information introduced by

them allege any factual inaccuracy in the presentence

investigation report or the summary of the report or

part thereof, the court shall, as to each matter

controverted, make . . . a finding as to the allegation

. . . .

-29-

The district court's oral rejection of Dews' objections to the

PSR satisfies Fed.R.Crim.P. 32(c)(3)(D).22 See United States v.

Stouffer, 986 F.2d 916, 927 (5th Cir. 1993) (stating that the trial

court's express rejection of the defendant's challenge to a PSR

satisfies Rule 32(c)(3)(D)), petition for cert. filed, (U.S. May

24, 1993) (No. 92-8827). By rejecting Dews' allegation that the

quantity of drugs for which the PSR held him responsible was not

reasonably foreseeable to him, the district court found that this

quantity was reasonably foreseeable to Dews. See United States v.

Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992) ("While the court did

not expressly state that it found the brother's conduct was

reasonably foreseeable to Lghodaro, the meaning of the court's

finding is clear."). This conclusion is buttressed by the district

court's application of the reasonably foreseeable standard to the

sentence enhancement given Dews for his co-conspirator's possession

of a firearm. See discussion supra part VI.B. The district court

enhanced Dews' sentence immediately after overruling Dews'

objection to the quantity finding. Accordingly, we reject Dews'

claim that the district court did not make a specific finding as to

the quantity of drugs reasonably foreseeable to him.
-30-

Alternatively, we conclude that district court's failure to

make a specific finding as to the quantity of drugs reasonably

foreseeable to Dews was harmless error. See Williams v. United

States, 112 S. Ct. 1112, 1120-21, 117 L. Ed. 2d 341 (1992) (stating

that "once the court of appeals has decided that the district court

misapplied the Guidelines, a remand is appropriate unless the

reviewing court concludes, on the record as a whole, that the error

was harmless"); United States v. Reese, __ F.2d __, slip op. at 13

(5th Cir. Aug. 13, 1993) (stating that where the defendant

challenges the accuracy of a PSR, the district court's finding

"need not be in any particular form, as long as this Court is able

to determine from the record whether the district court found the

challenged fact in favor of or against the defendant and whether

the fact affected the sentence"). The record reflects that Dews

was an early member of the conspiracy, sold drugs to an undercover

agent, and arranged for the sale of a substantial quantity of drugs

to the agent. Cf. United States v. Thomas, 963 F.2d 63, 65 (5th

Cir. 1992) (stating that "an individual dealing in a sizable amount

of controlled substances ordinarily will be presumed to recognize

that the drug organization with which he deals extends beyond his

universe of involvement").

Because the record does reflect substantial evidence

indicating that Dews knew or should have reasonably foreseen the

amount of drugs distributed by the conspiracy, "[t]o vacate and

remand this case for resentencing would be to engage in a hollow
 

23 Although we recognize that in analogous cases we have

vacated the sentence and remanded to the district court for

specific findings as to whether a defendant knew about or should

have reasonably foreseen the involvement of any particular amount

of drugs, see United States v. Webster, 960 F.2d 1301, 1309-10

(5th Cir.), cert. denied, 113 S. Ct. 355, 121 L. Ed. 2d 269

(1992); United States v. Puma, 937 F.2d 151, 159-60 (5th Cir.

1991), cert. denied, 112 S. Ct. 1165, 117 L. Ed. 2d 412 (1992),

these cases are distinguishable because neither opinion applied

the standard announced by the Supreme Court in Williams.

-31-

act and to waste judicial resources which are sorely needed to deal

with the ever increasing matters of substance." United States v.

Piazza, 959 F.2d 33, 37 (5th Cir. 1992). Consequently, we uphold

the sentence imposed by the district court.23

(ii)

Spignor also contends that the district court improperly held

him accountable for an excessive quantity of drugs. Spignor,

however, failed to raise this objection in the district court.

Consequently, he may not raise such objections now, absent plain

error. See United States v. Lopez, 923 F.2d 47, 49 (5th Cir.),

cert. denied, 111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991).

"Questions of fact capable of resolution by the district court upon

proper objection at sentencing can never constitute plain error."

Id. at 50. The PSR, which was adopted by the district court, found

that Spignor should have reasonably foreseen that his coconspirators would distribute 57.98 grams of cocaine. Because the

quantity of drugs reasonably foreseeable to Spignor is a question

of fact that the district court resolved at sentencing without

objection, see United States v. Rivera, 898 F.2d 442, 445 (5th Cir.
 

24 To the extent Spignor bases his argument on the fact

that he was a minimal or minor participant in the conspiracy, we

consider it without merit. See discussion supra part VI.A. 

-32-

1990) (holding that the quantity of drugs implicated by a crime is

a factual question), we refuse to reach the merits of his claim.

D

Spignor contends that the district court erred in refusing his

request to downwardly depart from the sentencing guidelines.

Spignor argues that the district court used remote convictions to

increase his applicable Criminal History Category.24 A downward

departure from the sentencing guidelines, however, is authorized

only for circumstances not adequately taken into consideration by

the Sentencing Commission when it promulgated the guidelines.

United States v. O'Brien, 950 F.2d 969, 970-71 (5th Cir. 1991),

cert. denied, 113 S. Ct. 64, 121 L. Ed. 2d 31 (1992). Because the

sentencing guidelines adequately take into account the remoteness

of prior convictions considered for determining a defendant's

Criminal History Category, see U.S.S.G. § 4A1.1, comment. (n. 1),

a downward departure on the ground Spignor asserts would be

inappropriate. In any event, Spignor fails to identify any law

violated by the district court's refusal to depart from the

Guidelines, and we do not review refusals to depart absent a

violation of law. United States v. Guajardo, 950 F.2d 203, 208

(5th Cir. 1991), cert. denied, 112 S. Ct. 1773, 118 L. Ed. 2d 432

(1992); United States v. Pierce, 893 F.2d 669, 678 (5th Cir.
 

25 The rule of lenity requires that where a federal

criminal statute is ambiguous, the ambiguity be resolved in favor

of the defendant. Dowling v. United States, 473 U.S. 207, 229,

105 S. Ct. 3127, 87 L. Ed. 2d 152 (1985).

-33-

1990). Consequently, we uphold the district court's refusal to

downwardly depart from the Guidelines.

E

Dews argues that because he was a minor participant in the

conspiracy, the rule of lenity applies and "mandates the exclusion

of relevant conduct under sentencing guidelines that attributes the

entire quantity of drugs to [him] and further exclusion of the

firearm enhancement."25 We have already found that the district

court reached proper conclusions on all the justifications raised

by Dews for application of the rule of lenity. See discussion

supra parts VI.A, B, and C. We therefore find that application of

the rule is not warranted here.

VII

For the foregoing reasons, we AFFIRM the district court's

judgment in all respects.