The HONORABLE R ODNEY S. WEBB, United States District Judge for the 1 District of North Dakota, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2138

_____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Kenneth James Summers, * * Appellant. *

_____________ Submitted: October 22, 1997 Filed: February 25, 1998

_____________ Before BEAM and FLOYD R. GIBSON, Circuit Judges, and WEBB, District Judge. 1

_____________ FLOYD R. GIBSON, Circuit Judge. A jury convicted Kenneth James Summers of conspiring to distribute marijuana, cocaine, and m ethamphetamine, see 21 U.S.C. §§ 841(a)(1), 846 (1994), and using or carr ying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C. § 924(c) (1) (1994). The district court sentenced Summers to terms of 151 months an d sixty mo nths, to be served consecutively. Summers raises three arguments on appeal: (1) the government failed to present evidence sufficient to support his firearm conviction (2) the proof at trial materially varied from the charges in his indictment; and-2-

(3) the district court a

bused its discretion when it allowed the government to introduce evidence of prior bad acts. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND In the spring of 1993, Summers began wor king for Daniel Stevens's construction compan y. Shortly after Summers's employment commenced, he began selling smal l amount s of methamphetamine to Stevens. Eventually, Stevens abandoned hi s construc tionbusiness and moved into Summers's home and received fre e methamphetamine in exchange for weighing and packaging drugs for Summers. Stevens testified that he delivered methamphetamine, c ocaine, and marijuana for Summers from late 1993 until late summer of 1994. After further questioning, Stevens changed hi s testimony, and stated several times that he worked for Summers into the winter of 1994. Through working with Summers, Stevens eventually met the Ortiz brot hers: Eric, Ramon, an d Roeles. The Ortiz brothers visited Summers's home on numerou s occasions to deliver drugs and collect money. In the winter of 1994, Stevens bega n working for Eric Ortiz because he did not feel that Summers treated him fairly. Stevens testified that from Nov ember 4, 1994, the beginning of the alleged conspiracy, until he stopped working for Summers, the largest singl e receipt of methamphetamine Summers received from Eric Ortiz weighed ten pounds. W hile Stevens worked for Eric Ortiz, he once d elivered three pounds of cocaine to Summers, and on another occasion, h e delivered ten to fifteen pounds of methamphetamine. Stevens also stated that he once delivered between ten and fifteen pounds of marijuana to Summers.
At all ti mes, Summers required Stevens to carry a gun. Stevens testified tha t Summers kept a twelve-gauge shotgun within reach at all times, and woul d often display the gun when meeting with others involved in the dr ug trade as a means of intimidation.The HONORABLE RONALD E. LONGSTAFF, United States District Judge 2 for the Southern District of Iowa. -3- The government also presented the testimony o f George Sholley, who stated that he had go ne to Summers's home on three or four occasions to purchase marijuana and methamphet amine. George testified that in May or June of 1995, Summers came t o George's home with several other people to collect money George's wife, Helen, owed him for previous drug purchases. During this visit, Summers and two other people in his group showed George the guns they were carrying and used threatening language. Summers apparently had his gun tucked into his waistban d. Helen Sholley testified that she repriman ded Summers for wielding a gun at her home while her children wer e present. In response, Summers told Helen that he and the others did not carry weapons and that George

must have been lying. Helen's testimony also indicated that the event may have occurred in the fall of 1994 rather than in the spring of 1995.
After hearing the evidence in the case, a jury convicted Summers of conspiring to distribute marijuana, cocaine, and methamphetamine, see 21 U.S.C. §§ 841(a)(1) , 846, and using or carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C. § 924(c)(1). The district court denied Summers's motion for a new trial. On appeal, Summers argues: (1) the government failed to present evidence sufficient to support his firearm conviction; (2) the proof at trial materially var ied from the charges in his indictment; and (3) the district court abused its discretion when it allowed th e government to introduce evidence of prior bad acts. Because we conclude that th e district court properly denied Summers's motion for a new trial, we affirm.

2
II. DISCUSSION
A. Firearm conviction-4-

Summers's first argument on appeal is that the government failed to produc e evidence s ufficient to support his firearm conviction under § 924(c)(1). Whe n reviewing the sufficiency of the evidence, we consider the evidence in the light mos t favorable to the jury verdict. See United States v. Purvis , 114 F.3d 737, 738 (8th Cir. 1997). "We will not weigh the evidence or as sess the credibility of witnesses." United States v. W illis , 89 F.3d 1371, 1376 (8th Cir.), cert.denied , 117 S. Ct. 273 (1996)

. Moreover, we will "uphold the jury verdict if there is an interpretation of the evidence that wou ld allow a reasonable jury to find the defendant guilty beyond a reasonabl e doubt." Purvis , 114 F.3d at 738-39.
To s ustain a conviction under § 924(c)(1), the government must prove that th e defen dant used or carried a firearm during and in relation to a drug trafficking crime

. See18 U.S.C. § 924(c)(1); Wil lis , 89 F.3d 1377-78. To convict a defendant under the "use" prong of § 924(c)(1), the government must present "evidence sufficient to show an active e mployment

of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey v. United States , 116 S. Ct. 501, 505 (1995) (emphasis in original). "The active-employment understanding of 'use' certainly includes brandishing, disp laying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at 508.
In this case, the government presented evidence sufficient to establish tha t Summers "used" or carried a firearm during and in rela tion to a drug trafficking offense. First, Stevens testified that Summers required him to carry a weapon at all times in an effort to pro vide protection for their drug trafficking activities. Based on principles of coc onspirator

liability, Summers is "criminally liable for the substantive offense s committed by another conspirator within the scope and in furtherance of th e conspiracy." United States v. Rodger , 100 F.3d 90, 91 n.2 (8th Cir. 1996) (per curiam), cert. denied , 118 S. Ct. 1 45 (1997). The government presented evidence that Stevens, whil e working for Summers, carried his gun at all times. The government als o presented evidence that Stevens continued to work for Summers after November 4,-5-

1994 , the date the government charged that the conspiracy began. Thus, the jur y reasonably could have inferred that Stevens carried a firearm during and in relation to the conspiracy. Summers would, therefore, be liable for t he firearm count based on Stevens's offense of carrying a firearm under § 924(c)(1). Second, Stevens testified that Summers often conducted drug transactions with a firearm displayed on the coffee table as a means of intimidation. Stevens's trial testimony illustrates the point:
A. I guess if that's your meaning of use, they were displayed all of the time. Q. By whom? A. Well, [Summers] used to h ave a shotgun out, sometimes he'd have that old .38 thing laying on t he coffee table, or I would have the 9- millimeter. Q. Th ese guns would be out in the open when the customers woul d come? A. I didn't leave mine out, but he did a lot. Q. Do you know why? A. To intimidate people, I guess. Summers's App. at 41. As the Supreme Court clarified in Bailey , displaying a firearm satisfies the "use" prong of § 924(c)(1). See Bailey , 116 S. Ct. at 508 . Though the trial testimony did not establish exact dates that Summers displayed the firearms, the jury re asonably could have inferred that, because Summers displayed firearms "a lot," a t least one such incident likely occurred after the conspiracy began in Novemb er of 1994. Stevens continued to work for Summers for at least a short period of time after the-6-

conspir acy began, and he still dealt with Summers after he began working for Eri c Ortiz. Therefore, Stevens's testi mony supports the reasonable inference that Summers displayed a firearm during the scope of the charged conspiracy. Finally, George Sholley testified that Summers came to his home in May or June of 1995, during the conspiracy, to colle ct money Helen Sholley owed him for previous drug purchases. George testified that, during this meeting, Summers had a gun tucked into his waistband and referred to it in threatening ways. Sum mers contends that Helen Sholl ey's testimony seemed to indicate that George lied about Summers's carrying a weapon. Her testimony also called into question whether the incident occurred during the time frame of the conspiracy. However, the jury heard the testimony of both George and Helen Sholley. It is likely that the jury credited George's testimony over Helen's, and we will not review question s of witness credibility on appeal. See Willis , 89 F.3d at 1376. A jury verdict will stand "if there is an interpretation of the evidence that w ould allow a reasonable jury to find the defendant guilty beyond a reasonabl e doubt." Pur vis , 114 F.3d at 738-39. We conclude that the government presente d evidence suffi cient to support the jury's determination that Summers used or carried a firearm during and in relation to the conspiracy.
B. Variance Summers contends that the government's proof at tri al materially varied from the charges c ontained in his indictment. Summers's primary complaint is that th e in dictment

charged that the conspiracy began "on or about November 4, 1994, " Summer' s App. at 6, but the government's evidence referred primarily to acts whic h occu rred prior to November 4, 1994. Summers also asserts that the events occurring before November 4, 1994, evidenced one conspiracy, while the indictment charged a separateconspiracy beginning on November 4, 1994. He argues that the evidence of the first conspiracy created a "spillover" effect which prejudiced his case.-7-

An indict ment is sufficient "if it contains all of the essential elements of th e offense charged, fairly informs the defendant of the charges against which he mus t defend, and alleges sufficient information toallow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution." United State s v. Wessels , 12 F.3d 746, 750 (8th Cir. 1993), cert. denied , 513 U.S. 831 (1994). Summers argues that a fatal varianc e occurred in his case because a substantial portion of the government' s eviden ce referred to events occurring before November 4, 1994 -- the date th e indictment charged that the conspiracy began. Summers claims that he could not have known he would have to defend against the pre-November 4 evidence. We note , however, that "a vari ance between the date in the indictment and the proof is not fatal if the proof shows that the acts charge d were committed on a date within the statute of limitations and prior to the return date of the indic tment." United States v. Prescott , 33 F.3d 922, 923-24 (8th Cir. 1994) (quotation and citation omitted).
Summers also contends that a variance occurred because the government' s evide nce established multiple conspiracies when the indictment charged a singl e conspiracy. "A single conspiracy is composed of individuals sharing common purposes or objectives under one general agreement." United States v. Morales , 113 F.3d 116, 118-19 (8th Cir. 1997) (quotation and citations omitted). If the jury finds "one overall agre ement

to commit an illegal act, the evidence establishes a single conspiracy. " United States v. Reagan , 940 F.2d 1134, 1135 (8th Cir. 1991). "In determinin g whether a vari ance exists, we consider the totality of the circumstances, including the natu re of the activities, the location and time frame in which the activities wer e performed, and

the participants involved." Morales , 113 F.3d at 119. After a careful review of the evidence presented at trial, we conclude that the government established the existence of a single, ongoing conspiracy to distribute methamphetamine, cocaine, and m arijuana between Summers, Stevens, and the Ortiz brothers, as well as others

. The only significant change which occurred was that Stevens went from reporting to Summers to repo rting to Eric Ortiz. The pre-November 4 evidence introduced by the government was merely background evidence which tended to show how the-8-

conspiracy developed in its initial stages. See United States v. Heidebur , 122 F.3d 577, 579 (8th Cir. 1997). Therefore, we cannot conclude tha t the pre-November 4 evidence created a variance.
C. Evidence of Prior Bad Acts
Summers also argues that the district court erred when it admitted evidence of events occurring prior to November 4, 1994 because that evidence was beyond th e scope of th e charged conspiracy. Therefore, he claims, such evidence should hav e been excluded as evidence of prior bad acts under Fed. R. Evid. 404(b). We review a district court's decision to admit evidence of a defendant's prior bad acts for an abuse of discretion. See United States v. Tomberlin , 130 F.3d 1318, 1320 (8th Cir. 1997).
We conclude that the evidence Summers complains of -- the pre-November 4, 1994 evidence -- is evidence of "bad acts that form the factual setting of the crime in iss ue," Heidebur , 122 F.3d at 579 (quotation omitted), which does not come withi n Rule 404(b)'s coverage at all, see id. Therefore, we cannot conclude that the district court abused its discretion in admitting such evidence.
III. CONCLUSION
For the reasons set f

orth in this opinion, we affirm the district court's judgment.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.