United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 96-1265

United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the Eastern * District of Missouri. Linda Sue Bryson, Also Known * as Linda Sue Campbell, Also * Known as Linda Nolting, Also * Known as Karen Nolting, Also * Known as Linda Sue Vehlewald, * * Appellant. *

No. 96-1359

United States of America, * * Appellee, * * v. * * Henrietta Furnish, Also Known * as Hank, * * Appellant. *

### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota, sitting by designation.

-2- No. 96-1362

United States of America, * * Appellee, * * v. * * Ronnie Furnish, * * Appellant. *

Submitted: November 21, 1996 Filed: April 7, 1997

Before McM ILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE, 1 District Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge. The three defendants were indicted, along with seven others, on one
coun t of conspiracy to distribute, and to possess with the intent t o distribute, more than one kilogram each of methamphetamine and heroin. Se e 21 U.S.C. § 841(a)(1) , § 846. The conspiracy was alleged to have existed between December, 1992, and June, 1995. After a two-day trial, a jur y convicted Linda Bryson. After a separate seven-day trial, a jury convicte d Ronnie Furnish and He nrietta Furnish (who are husband and wife) and three co-defendants whose cases we do not address in this opinion.

### -3- Ms. Brys on and Mr. Furnish appeal both their convictions and thei r sentences
. Ms. Furnish appeals only her conviction. We affirm th e convictions of all three defendants but remand t he cases of Ms. Bryson and Mr. Furnish for resentencing.

I. As far as we can tell, Ms. Bryson was first arrested in late March, 1995. We note the date of Ms. Bryson’s initial arrest because of th e wording of her pretrial motions to suppress, both of which requested the exclusion of "all statements ... taken from [Ms. Bryson] ... at any time following her initial arrest." Despite the spec ificity of those requests, howev er, at hearings on pretrial motions, both Ms. Bryson and th e govern ment seemed to assume that Ms. Bryson was challenging th e admissibilityof statements that she gave in June, 1994, during a police interview at the St. Louis airport and in February, 1995, during a police interview at her residence, even though both of those dates are prior to her initial arrest. Both parties presented proof on those issues.
Ms. Bryson’s motions to suppress also requested the exclusion o f "all
ev idence obtained ... by means of a search ... of [Ms. Bryson’s ] residence." Despite the specificity of that req uest, however, at hearings
on pretrial motions, both Ms. Bryson and the government seemed to assume that Ms. Bryson was c hallenging the admissibility of money and hypodermic needles found in a search of her luggage during the airport interview, eve n thou gh that search was not at her residence. Both parties presente d evidence on that issue.

### The Honorable Mary Ann L. Medler, United States Magistrat e 2 

### Judge, United States District Court for the Eastern District o f Missouri.

-4- The magistrate judge wh o conducted the hearings on pretrial motions 2 made findings of fact and recommendations with respect to the statements and evide nce described above. The trial court ruled on those issues a s well. Even on appeal, the government says nothing about this apparen t discrepancy between the motions and the proof.

Under these circumstances, we too ar e inclined to address all of the matters argued in the trial court, proceeding as if Ms. Bryson’s motions requested the exclusi on of "all statements" and "all evidence obtained .. by means o f a search." See , e.g. , 3 C. Wright, Federal Practice an d Procedur e: Criminal 2d § 673 at 769 (1982). See also United States v

. Hall , 565 F.2d 917, 919-20 (5th Cir. 1978); United States v. Wylie , 46 2 F.2d 1178, 1182 (D.C. Cir. 1972); and United States v. Lucas , 360 F.2d 937 , 938 (6th Cir. 1966) ( per curiam ), cert. denied , 385 U.S. 875 (1966). We therefore turn to each of the incidents referred to above. II. In June, 1994, acting on suspicion that Ms. Bryson might be "in volved in drugs ," a police officer stopped Ms. Bryson and a friend at the St

. Louis, Missouri, airp ort, identified herself to them as a police officer, and asked if Ms. Bryson was going to Los Angeles ; Ms. Bryson said that she was. (We recount the facts as found by the magistrate judge based on the testimony of two poli ce officers at a suppression hearing; Ms. Bryson did not testify.) The officer was not wearing a uniform, and her weapon was not visib le. The officer then asked Ms. Bryson if they could talk ; Ms. Bryson agreed.

### -5- The pol ice officer asked if she could see Ms. Bryson’s ticket, an d Ms. Bryson gave the officer the ticket. The officer then asked i f Ms. Bryson was the person whose name was on the ticket. Ms. Bryso n responded that the ticket was in her sister’s na me but that her sister was unable to go. When asked for some identification, Ms. Bryson offered a driver’s license in the name of "Linda Campbell." The officer the n returned the ticket a nd the driver’s license and asked Ms. Bryson why she

was going to California; Ms. Bryson’s response was that she was going to visit a friend but that the friend "doesn’t have anything to do with this. "

At that point, the police officer asked if she could searc h Ms. Bryson’s carry-on bag. Ms. Bryson agreed, and the officer searched th e bag but found nothing of moment. Approximately three minutes had elapsed since the officer had first stopped the two wome n. The officer then asked about ch ecked bags, and Ms. Bryson said that she had four and gave he r ticket envelope (with claim checks attached) to the officer. When asked if the officer could search her checked bags, Ms. Bryson agreed.

In the me antime, a second police officer (who had been interviewing Ms. Bryson’s friend) had arrested the friend for possession of marijuana and m ethamphetamine, a development of which Ms. Bryson was aware. Th e officers t old Ms. Bryson that they were detaining her friend, and th e officer who had been questioning Ms. Bryson asked if she would return to the offi ce with them. When asked to observe the search of her checke d bags, Ms. Bryson agreed to do so. Approximately 20 to 30 minutes ha d elapsed since the search of Ms. Bryson’s carry-on bag.

### -6- During th e search of Ms. Bryson’s checked bags, the police officers foun d approximately $12,000 and some hypodermic needles. A drug do g alerted "positive" to the money as having "a narcotic odor." Although the y did not arrest Ms. Bryson, the officers seized t he money. In an interview with the second officer after the money was discovered, Ms. Bryson at firs t asserted that the money belonged to someone whose name it was not in her best interest to give. When asked to whom a receipt should be made out, however, she said that the money belonged to her.

Ms. Bryso n moved to suppress the money and hypodermic needles found in her ch ecked bags and her statements to the police officers. Sh e asserted that when the officers asked her to accompany them to their offic e and retrieved her checked bags, a consensual encounter became a seizur e that lacked probable cause, and thus that the mo ney and hypodermic needles should be suppressed. She argued, as well, that because she was not given the warnings required under Miranda v. Arizona , 384 U.S. 436, 467-73, 478- 79 (1966), for custodial interrogations, her statements should b e suppressed.
The magis trate judge concluded that Ms. Bryson’s encounter with the police off icers never turned into a seizure. The trial court agreed

. Ms. Bryson does not challenge any of the magistrate judge’s factua l findings as clearly erroneous. See , e.g. , United States v. McKines , 933 F.2 d 1412, 1426 (8th Cir. 1991) ( en banc ), cert. denied , 502 U.S. 98 5 (1991). Rather, the essence of her argument on appeal is that the trial court erred in concluding that no seizure occurr ed. We review de novo the conclusion that no seizure occurred. See , e.g. , id. at 1424, 1426.

### -7- Generally, a seizure within the meaning of the fourth amendmen t
occurs only if, considering all of the circumstances of the incident, a reasonable person would believe that he or she i s not free to leave. See , e.g. , id. at 1415, 1416 n.3. The courts have recognized the "fact

intensive " yet "imprecise nature of [the] inquiry." Id. at 1419. "Th e test is necessarily imprecise, because it is designed to assess th e coercive nature of po lice conduct, taken as a whole, rather than to focus
on pa rticular details of that conduct in isolation." Michigan v

. Chesternut , 486 U.S. 567, 573 (1988). We consid er, therefore, whether all of the circumstances involved in Ms. Bryson’s initial encounter with the police officers were "so intimidating, threatening or coercive that a reasonable person would not have believed himself [or herself] free t o leave." United States v. McKines , 933 F.2d at 1419.

Ms. Bry son directs our attention to Buffkins v. City of Omaha , 92 2 F.2d 465, 469 (8th Cir. 1990), cert. denied , 502 U.S. 898 (1991), in which our court held that a seizure occurred when two police officers "requested [the defendant] to accompany them to the office ... [and] at that tim e seized her luggage .. . [by] picking [it] up." In that case, however, the officers told the defendant’s friend that she wa s "free to go" but made no such statement to the defendant. Indeed, our co urt specifically concluded that the "officers' conflicting statements" to the defendant and her frien d would have led to a reasonable belief on the def endant’s part that she was not free to go. Id. In Ms. Bryson’s case, it w as Ms. Bryson’s friend who
was arrested, and thus "had no choice but to go with the officers," id. , and Ms. Bryson who could have "reasonably infer[red]," id. , that she, in contrast to her friend, was free to go. We note as well that it wa s Ms. Bryson who gave the claim checks to the officer after being asked abou t checked

### -8-

bags, rather than the officer’s physically commandeering those bags, see id. , from Ms. Bryson’s possession.

Ms. Br yson also relies on Florida v. Royer , 460 U.S. 491, 501, 50 3 (1983) (plurality opinion), in which the Supreme Court held that a seizure
occurr ed when two police officers retained the defendant’s ticket an d ide ntification, asked the defendant to accompany them to an office, an d used the defendant’s claim checks to retrieve hi s checked bags without his "consent o r agreement," id. at 494 (plurality opinion). In our case , however, the officer had returned Ms. Bryson’s t icket and driver's license before asking about checked bags and did not take physical control of thos e bags until after Ms. Bryson responded that she had four checked bags and handed her ticket envelope, with claim checks attached, to the officer.
We believe that Ms. Bryson’s case is more analogous to United States v. Dennis , 933 F.2d 6 71, 673 (8th Cir. 1991) ( per curiam ); United States

v. McKines , 933 F.2d at 1422-23, 1426; and United States v. Poitier , 818 F.2d 679, 683 (8th Cir. 1987), cert. denied , 484 U.S. 1006 (1988), where our court found that no seizure had occurred whe n the police officers were not uniformed, did not openly display their weapons, and did not physicall y touch the defendant; see also United States v. Delaney , 52 F.3d 182, 186 (8th Cir. 1995), cert. denied , 116 S. Ct. 209 (1 995), and United States v. Todd , 963 F.2d 207, 210 (8th Cir. 1992). We therefore hold that no seizur e of Ms. Bryson occurre d when the officers asked about her checked bags and asked her to accompany them to their office, where Ms. Bryson’s checke d bag s were brought. Since there was no seizure, the officers were no t required to give Miranda warnings to Ms. Bryson before she made an y statements in the office. See Miranda , 384 U.S. at 467-73, 478-79. The trial court’s refusal to

### -9-

suppress the money, the hypodermic needles, and Ms. Bryson’s statements wa s thus not error.

III. In Fe bruary, 1995, two police officers and a DEA agent went t o Ms. Bry son's residence in St. Louis, Missouri, to try to find her. (W e recount the facts as found by the magistrate judge based on the testimony of one of the police officers and the DEA agent at two differen t suppression hearings; Ms. Bryson did not testify at either hearing.) At that time, the indict ment against her had been issued but was still under seal. Ms. Bryson's son directed the officers and the DEA agent to a secon d house, where one of the officers and the DEA agent found Ms. Bryson (the second officer stayed at the residence).
The polic e officer and the DEA agent identified themselves and told Ms. Bryson that she was a target of a drug investigation. They asked if they could speak with her, and Ms. Bryson agreedbut stated that she would rather ret urn to her residence instead of talking outside. After th e police officer advised Ms. Bryson of her Miranda rights, and she said that she understood them, Ms. Bryson, the officer, and the DEA agent returned to her residence.

Ms
. Bryson, both police officers, and the DEA agent went inside , where t he law enforcement officers asked for her cooperation in thei r investi gation, which, they stated, would be taken into consideration

. Specif ically, they asked for information about her role in distributin g methamphetamine. Ms. Bryson stated that she ordered methamphetamine from Henrietta Furnish (a co-defendant), gave t he money to Robert Avila (a co-defendant who pleaded guilty and testified for the government), and then received

### -10-

the methamphetamine from Ms. Furnish. Ms. Bryson admitted that she ha d recently received a pound of methamphetamine fro m Ms. Furnish and told the two officers and the DEA agent that it was hidden in the house where they originally found her. The questioning took about 45 minutes. At som e point Ms. Bryson signed forms consenting to a search of both houses.
Ms. Bryson, the two police officers, and the DEA agent then returned to the house where th ey originally found her, and she gave them the pound of methamp hetamine that she had told them about. The law enforcemen t of ficers also found two one-ounce packages of methamphetamine, whic h Ms. Bryson said she had obtained from Mr. Avila the previous week.
Ms. Bryson subsequently went with the law enforcement officers to the DEA offic e, where the DEA agent typed a summary of the information tha t Ms. Bryson had given. She initialed a form indicating that she had been advised of her Mirand a rights and that no "threats, force, or promises of rewards" had been used in obtaining the statemen t. In response to the DEA agent's inquiry, Ms. Bryson said that the typed summary of her statements was accurate; she then signed it "Linda Campbell " and initialed each page.

Ms. Bry son moved to suppress her statements and the drugs that th e law enforcement officers found. Ms. Bryson argued, first, that because th e DEA agent did not recall hearing her receive her Miranda rights, they were not giv en; that she was effectively in custody at the time she gave he r statem ents; and that the statements should therefore be suppressed a s having been induced w ithout prior Miranda warnings. She also argued that because sh e was under indictment even though unaware of it, her sixt h amendment

### -11-

right t o counsel had attached, and therefore that the law enforcemen t officers were actively interfering with that right by telling her only tha t she was a target of a drug investigation rather than that she had already been indicted. Ms. B ryson further argued that her alleged waivers of her Miranda rights and her sixth amendment rights were not fully informe d because of her lack of awareness of the indictment. Finally, she contende d that her consents to answer questions and to all ow the house searches were obtained by deceit so egregious as to amount to coercion under the law, an d therefore were not voluntary under the law.

The magi strate judge found that one of the police officers advise d Ms. Bryso n of her Miranda rights. The magistrate judge also found tha t Ms. Bryson's consents to answer questions and to allow the searches were voluntary and not coerced. The trial court adop ted all of those findings.

It is true that at one of the suppression hearings the DEA agen t testified that Ms. Bryson was never given Miranda warnings "because she wa s
never placed under arrest." At the other suppression hearing, however, on e of the police officers testified that he advised Ms. Bryson of those right s "when we approached her." From all of that testimony, the magistrate judg e concluded that the DEA agent "apparently was out of earshot when [th e poli ce officer] advised Ms. Bryson of her rights." In reviewing th e magist rate judge's findings, the trial court concluded that the polic e officer "advised [Ms. Bryson] of her Miranda rights verbally, out of the hearing of the DEA agent."

We have r ead the transcripts of both suppression hearings. Th e finding t hat Ms. Bryson was indeed advised of her Miranda rights is no t clearly erroneous. See , e.g. , United States v.

### -12-

Chaidez , 906 F.2d 377, 385 (8th Cir. 1990), and United States v. Capers , 685 F.2d 249, 252 (8t h Cir. 1982) ( per curiam ); see also United States v. Dickson , 58 F.3d 1258, 1265 (8th Cir. 1995), mod ified on other grounds , 64 F.3d 409 (8th Cir. 19 95), cert. denied , 116 S. Ct. 747 (1996), and Atwell v. State of Arkansas , 426 F.2d 912, 913-14 (8th Cir. 1970).

It is a lso true that Ms. Bryson's sixth amendment right to counse l attached once she was indicted. See e.g. , United States v. Gouveia , 467 U.S. 180, 187-89 (198 4); see also Kirby v. Illinois , 406 U.S. 682, 688-90 (1972) ( plurality opinion). Our court has held, however, that la w enforcement officers, with the consent of a suspect, may question eve n suspects who are unaware of their own indictment. Our court has further held that the officers have no duty to make such suspects aware of a n indictment. See , e.g . , United States v. Chadwick , 999 F.2d 1282, 1284-86 (8th Cir. 1993). We turn, then, to the question of whether Ms. Bryson's consent to answer questions was fully informed.

The Supre me Court has held that the Miranda warnings are sufficient to advise a suspect of the sixth amendment right to counsel and, therefore , that a valid waiver after being advised of Miranda rights is also a knowin g waiver for sixth amendment purposes, see , e.g. , Patterson v. Illinois , 487 U.S. 285, 291-300 (1988), except in certain circumstances not present here , see , e.g. , id. at 296-97 n.9. See also United States v. Chadwick , 999 F.2 d at 128 5. We therefore reject Ms. Bryson's argument that her lack o f
awareness of the indictment rendered her consent to answer questions not "knowing" under the law.
Ms. Bryson asserts that by telling h er that she was only a target of a drug investigation and not that she had actually been

### -13-

indicted, the law enforcement officers engaged in deceit so extensive as to amount to coercion. She contends, therefore, that her consents t o
answer questions and to allow the house searches were involuntary under th e law.

It is true that in some cases, a consent has been rendere d involunta ry under the law because of deception on the part of a la w enforcement officer. See , e.g. , United States v . Bosse , 898 F.2d 113, 115 (9th Cir. 1990) ( per curiam ); United States v. Carter , 884 F.2d 368, 374-7 5 (8th Cir. 1989); and United States v. Tweel , 550 F.2d 297, 299-300 (5t h Cir. 1977). See also United States v. Briley , 7 26 F.2d 1301, 1304-05 (8th Cir. 1984). None of those cases, however, involved circumstances eve n close to those present in this case.

Ms. Bryson was told not only that she was a target of a n investigation but also that it was a drug investigation. We do not believ e that t he law enforcement officers' request for cooperation in thos e circum stances would inevitably lead a reasonable person to believe tha t "she was being given an opportunity to make thin gs easier on herself, turn informant, and perhap s even escape being charged," as Ms. Bryson contends in her brief. Furthermore, although she asserts in her brief that she was "inveigled" into ente ring a cooperation agreement, and that the officers' representations to her "evoked" "fears and hopes " on her part, in fact she offer ed no evidence to support those contentions at either of th e suppression hearings. Under those circumstances, we decline to hold that her consen ts to answer questions and to allow the house searches wer e involuntary.

### -14- IV. During trial, the court admitted evidence of Ms. Bryson's 198 7 federal conviction for distributing methamphetamine. Ms. Bryson argue s that five y ears is too remote in time from the onset of the allege d conspiracy and that the government offered no proof, other than the bare title of the offense, to show that the prior conviction was for act s similar to those charged in the present case. Ms. Bryson further argues that any probative value of the prior convictionwas far outweighed by its unfair prejudicial effect. See Fed. R. Ev. 403.

The trial court also admitted evidence that when Ms. Bryson wa s arrested i n October, 1995, for the second time (having fled after he r initial arrest in March, 1995), the three police officers who arrested her found, in the truck in which she was riding, a pair of medical clamps, fiv e hypode rmic syringes (four of them apparently already used), and tw o ballpoint pen tubes that contained "an unknown residue." After the arrest , Ms. Bryson stated that the items found in the truck were hers. Finally, the trial court admitted evidence that when the residence of the truck's owner (where Ms. Bryson had evidently been livin g) was searched subsequent to Ms. Bryson's arrest, the police officers who arrested her found "a spoo n with white powder residue, two crack pipes, [a] marijuana pipe, and a smal l amount of marijuana."

With respect to the apparent drug paraphernalia, Ms. Bryson note s that the only drugs potentially evident at the t ime of her arrest were the residues in the four hypodermic syringes and the ballpoint pen tubes, the white p owder residue in a spoon, and the marijuana, a drug that was no t inc luded in the charges (since the alleged conspiracy was to distribut e methamphetamine and heroin). As to the residues, Ms. Bryson argues that they represented

### -15-

evidence of nothing m ore than personal use, that they were therefore only barely relevant to the charge of conspiracy to distribute, and thus that their unfair prejudicial effect exceeded by far any probative value that they might have had. See Fed. R. Ev. 403.

At the ti me that all of that evidence was admitted, the trial court instructed the jurors that they could not use the evidence "to decid e whether [Ms. Bryson] carried out the acts involved in the crime charged" but that if they were convinced, beyond a reasonable doubt, by othe r evidence that Ms. Bryson had indeed carried out the acts involved in the crime charged, they could "use this evidence concerning previous [and , presumably, subsequent] acts to decide intent, k nowledge, or common scheme or plan." See Fed. R. Ev. 404(b).
Evidence of "other crimes, wrongs, o r acts" by a defendant, see Fed. R. Ev. 404(b), is inadmissible only if its relevance is solely to th e question of a defendant's "character or ... prop ensity to commit the crime charged." United States v. Jones , 990 F.2d 1047, 1050 (8th Cir. 1993) , cert. denied , 510 U.S . 1048 (1994). Such evidence is admissible if it is "(1) rele vant to a material issue; (2) proved by a preponderance of th e evidence; (3) higher in probative value than in prejudicial effect; and (4 ) similar in kind and close in time to the crime c harged." United States v. Campbel l , 937 F.2d 404, 406 (8th Cir. 1991). We review a trial court' s decision to admit such evidence for abuse of discretion. See , e.g. , Unite d States v. Wiley , 29 F.3d 345, 350-51 (8th Cir. 1994), cert. denied , 11 5 S. Ct. 522 (1994).

We a pply "a reasonableness standard, examining the facts an d circumstances of each case," in deciding whether a previous

### -16-

conviction is too remote in time to be admitted. United States v. Burk , 912 F.2d 225, 228 (8th Cir. 1990). We observe, however, that in othe r cases, our court has allowed the admission of prior convictions at least seven and thirteen years old. See , respectively , id. at 227-28 and United States v. Burkett , 821 F.2d 1306, 1308-10 (8th Cir. 1987) (both seve n years), and United States v. Engleman , 648 F.2d 473, 478-80 (8th Cir. 1981 ) (thirteen years). We therefore do not think that Ms. Bryson's previou s convic tion was so remote in time as to render it automaticall y inadmissible.

Ms. Brys on was charged in this case with conspiracy to distribute , and to possess with t he intent to distribute, more than one kilogram each of methamphetamine and heroin. We greet with some surprise, therefore, he r contention that the introduction of a certified copy of her conviction for distributing methamph etamine had to be amplified by evidence of the exact acts involved in order to show that that convict ion was "similar in kind,"
see Fed. R. Ev. 404(b), to the charge in this case. At the very least, th e prio r conviction was clearly relevant on the issues of knowledge an d intent. See , e.g. , United States v. Gadison , 8 F.3d 186, 191-92 (5th Cir. 1993) (prior conviction for possession of cocaine; current charge o f conspiracy to distribute cocaine base), and United States v. Rubio-Estrada , 857 F.2d 845, 847-49 (1st Cir. 1988) (prior conv iction for possession with intent to distribute cocaine; current charge the same). We also believe that the trial court did not abuse its discretion in deciding that th e probative value of th e prior conviction outweighed its unfair prejudicial effect. W e therefore hold that the trial court properly admitted th e evidence of Ms. Bryson's 1987 conviction.

We see no evidence in the trial transcript that the drug residue s found at the time of Ms. Bryson's second arrest were

### -17-

ana lyzed and thus identified. We therefore have reservations about th e admiss ion of the evidence of the apparent drug paraphernalia, thos e residues, and the marijuana also found at that time. Nonetheless, w e believe that even if the trial court erred in al lowing that evidence to be admitt ed, the error was harmless. That is because, in our view, it s pr ejudicial effect was negligible compared to the overwhelming othe r evide nce against Ms. Bryson. We therefore decline to reverse he r conviction because of the admission of the evidence that she challenges. See , e.g. , United States v. Betts , 16 F.3d 748, 760-61 (7th Cir. 1994), an d United States v. Echeverri , 854 F.2d 638, 645-48 (3d Cir. 1988).

V. At sentencing, the trial court increased by three levels Ms. Br yson's base offense level under the federal guidelines to reflect that Ms. Bryson
was a manager or supervisor in a criminal activity that involved five or
mor e participants or was otherwise extensive. See U.S.S.G. § 3B1.1(b)

. The trial court state d only, however, that the evidence "that was adduced indicates that Ms. Bryson was in fact the main p erson in St. Louis and had several people working under her, received larg e quantities of drugs, and I b elieve all of that is ample to support a three level enhancement. " Ms. Bryson argues that the trial court's finding that she was a manager or supervisor is clearly erroneous (she does not challenge the size or scope of the conspiracy). See , e.g. , United States v. Skorniak , 59 F.3d 750, 75 7 (8th Cir. 1995), cert. denied , 116 S. Ct. 487 (1995).

The adjustments available under § 3B1.1 are meant to differentiat e among defendants according to their relative res ponsibility. See U.S.S.G. § 3B1.1, background. In deciding whether a defendant was a manager o r supervisor, see U.S.S.G.

### -18-

§ B1.1, application note 2, the court should consider the defendant' s
ex ercise of decision-making authority, the nature of the defendant' s partic ipation in the crime, the defendant's recruitment (if any) o f accomplices, the defendant's claim (if any) to more of the fruits of the crime, the degree of the defendant's participation in planning o r organizing the offens e, the nature and scope of the crime, and the degree of control and authority that the defendant exercised over others. Se e U.S.S.G. § B1.1, application note 4.

The evidence at trial (no additional evidence was presented a t sente ncing) was that Ms. Bryson was sent at least nine packages, unde r variou s names and at least three different addresses, from Henriett a Furnish (a co-defendant), a person who Ms. Bryso n described to a DEA agent

as having supplied her with methamphetamine in one-pound quantities "for a period of time." Ms. Bryson also told the DEA agent that she and Robert Avila (a co-def endant who pleaded guilty and testified for the government) woul d "work in conjunction" to get methamphetamine from Ms. Furnish (evidently Mr. Avila acted as a middleman in placing the order and collecting th e money). At one point , Ms. Bryson asked Mr. Avila if he also could supply her with methamphetamine. Ms. Bryson told both the DEA agent and Mr. Avil a that she sold the methamphetamine when she received it.

It is true that Ms. Bryson was receiving such large amounts o f metham phetamine that an intent to distribute could easily be inferred

. There is no evidence in the record, however, about sales by Ms. Bryson to subord inate dealers or, indeed, to anyone other than a governmen t informant. The Seventh Circuit has held that status "as a distributor , standing alone, does not warrant an enhancement under § 3B1.1," Unite d States v. Brown , 944 F.2d 1377,

### -19-

1381 (7th Cir. 1991), and we agree with that view. We note that there is
no evidence in the record that Ms. Bryson had "a greater degree o f responsibility [than any of the co-defendants to whom she was linked by th e evidence] for putting together the drug operation or a particular deal." United States v. Vargas , 16 F.3d 155, 160 (7th Cir. 1994). Ms. Bryson's status as a mid-level distributor is already ref lected in her base offense level, a figure based on the amount of drugs she was responsible fo r distrib uting. See , e.g. , United States v. Brown , 944 F.2d at 1385. I n these circumstances, we agree with the Seventh Circuit that withou t

" additional evidence that demonstrated [that she] exercised a leadership role in the offense," an enhancement under § 3B1.1 is inappropriate. Id. (emphasis in original).

There were six defendants in these c ases, and during the two trials, testimony was offered about many drug deals and many individuals. W e believe that in remembering the evidence, the trial court may hav e inadvertently conflated some of it. With respec t to Ms. Bryson, we cannot fi nd sufficient evidence to affirm the three-level enhancement unde r § 3B1.1. We therefore remand her case for resentencing in light of this opinion.

VI. Ronnie and Henrietta Furnish, who are husband and wife, challen ge the sufficiencyof the evidence for their convictions. Mr. Furnish contends specifically that there is no evidence directly linking him to the alleged conspira cyas a participant and that mere knowledge of the allege d conspiracy is not eno ugh to sustain his conviction. Ms. Furnish contends that ther e is no evidence that she ever belonged to a conspiracy t o distribute both metha mphetamine and heroin, as opposed to methamphetamine only (which she concedes). We review the evidence in the light most

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favorable to the government. See , e.g. , United States v. Jenkins , 78 F.3d 1283, 1287 (8th Cir. 1996). We turn first to Mr. Furnish.
During a search of the Furnishes' re sidence in 1994, law enforcement officers found a loaded pistol and extra bullets in the master bedroom , with a note from Mr. Furnish indicating that he had loaded and cocked the weapon (presumably to protect the methamphetamin e-associated manufacturing apparatus found in the attic above the closet inthat bedroom). There was also evidence that Mr. Furnish often used the name "Greg Hildebrand" and received, in that name and in his own name, at least $5,000 from Paul Loga n (a co-defendant whose case we do not address here) in 1992-1993 and a t least $100 from Linda Bryson (a co-defendant) in 1995.
Evidence of loaded firearms, particularly in close proximity to drugrel ated items (such as equipment for drug manufacture), is probative o f inten t to distribute. See , e.g. , United States v. Meirovitz , 918 F.2 d 137 6, 1379-80 (8th Cir. 1990), cert. denied , 502 U.S. 829 (1991). A n extrem elyclose personal connection to a location that contains drug

related items (such as equipment for drug manufacture) is probative of bot h conspiracy to manufac ture drugs and conspiracy to distribute. See , e.g. , United States v. Rogers , 939 F.2d 591, 595 (8th Cir. 1991) ( per curiam ), cert. denied , 502 U.S . 991 (1991), and United States v. Perlaza , 818 F.2d 1354, 135 9 (7th Cir. 1987), cert. denied , 484 U.S. 861 (1987). Th e repeated use of an alias is probative of consciousness of guilt. See , e.g. , United States v. Valencia-Lucena , 925 F.2d506, 513 (1st Cir. 1991), and United States v. Eggleton , 799 F.2d 378, 381 (8th Cir. 1986). Finally , eviden ce of money transfers between a defendant and co-defendants i s probative of involvem ent in a drug-related conspiracy. See , e.g. , United States v. Singer , 970 F.2d

### -21-

1414, 1419 (5th Cir. 1992), and United States v. Delgado , 914 F.2d 1062, 1066 (8th Cir. 1990). We therefore believe that although the evidenc e against Mr. Furnish is not extensive, it is nonetheless, in combination, legally sufficient.
It is clear from the trial transcript that Robert Avila (a co-def endant who pleaded guilty and testified for the government) an d Rodrigo Rodriguez (a co-defendant whose case we do not address here) were the primary actors inthe heroin distribution that occurred in this case. The evidence also showed, however, that Ms. Furnish knew that Mr. Avila ha d a source for heroin a nd that she asked him on at least one occasion, and possibly more (the te stimony was unclear), to send some heroin to a third person.

Ms. Furnish and Mr. Avila worked closely together to suppl y methamphetamine to others. It would not have been unreasonable for th e jurors to conclude that Ms. Furnish and Mr. Avila had the common goal of sendin g illegal drugs from California to Missouri, with Ms. Furnish' s primaryresponsibility being the methamphetamine and Mr. Avila's primary resp onsibilitybeing the heroin. Indeed, there was some evidence t o suggest that they may have had at least one customer in common for bot h drugs -- Steven Glaus (a co-defendant whose ca se we do not address here) -- who may have served as
a mid-level distributor for both drugs. Although the issue is a close one , we hold that the totality of the evidence supports a conclusion that the conspiracy was a sing le one to distribute both methamphetamine and heroin and t hat Ms. Furnish was a knowing participant in that conspiracy wit h respect to both drugs. We therefore affirm her conviction.

We caution the government, however, that it may be "unnecessaril y exposing itself to reversal," United States v.

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Sperling , 506 F.2d 1323, 1340 (2d Cir. 1974), cert. denied , 420 U.S. 962 (1975 ), 421 U.S. 949 (1975), by combining the charges against te n defendants into one c ase under the claim of a single conspiracy "when the crimin al acts could be more reasonably regarded as two or mor e conspiracies, perhaps with a link at the top," id. at 1341. In our view, the link between Ms. Furnish and the conspiracy to distribute heroin i s just about as thin as it can be and still be legally sufficient.

VII. Finally, Mr. Furnish challenges the trial court's application to him of a four-level increase of his base offense level under the federa l sentenc ing guidelines to reflect that Mr. Furnish was an organizer o r leader in a criminal activity that involved five or more participants or

was o therwise extensive. See U.S.S.G. § 3B1.1(a). At sentencing, th e trial court made no specific findings but merely "overruled" Mr. Furnish's objection to the four-level increase. Mr. Furnish argues that the trial court's finding that he was an organizer or leader is clearly erroneous (h e does not challenge the size or scope of the conspiracy). See , e.g. , Unite d States v. Maxwell , 25 F.3d 1389, 1399 (8th Cir. 1994), cert. denied , 115 S. Ct. 610 (1994).

As no ted above, in determining whether this adjustment i s appro priate, a trial court should consider how much decision-makin g authority the defendant had, the nature of the defendant's participation in the crime, whether the defendant recruited ac complices, the defendant's assertion of a right to greater profits from the crime, the defendant' s degree of participati on in planning or organizing the offense, the nature and scope of the crime, and the degree of the defendant's control an d authority over others. See U.S.S.G. § 3B1.1, application note 4.

### -23- In our view, the evidence against Mr. Furnish shows nothin g resembling the type o f control over "one or more other participants," see U.S.S.G. § 3B1.1, application note 2, that is necessary to support a n enhanceme nt for being a leader or organizer in the absence of othe r evid ence of leadership or organization. It is true that Mr. Furnis h apparently had a buyer/seller relationship with Paul Logan (a co-defendant whose cas e we do not address here) and possibly Linda Bryson (a co

defendant), and may e ven have "fronted" methamphetamine to them (although the evidence is not clear on that point). There was no evidence, however, that Mr. Furnish "regularly made decisions as to when [drugs] should b e transported, hired th e [transporters], ... recruited distributors, ... or directed the activity of [any] subordinate." United States v. Richards , 784 F. Supp. 1373, 1384 (N.D. Ind. 1992), aff'd , 997 F.2d 248 (7th Cir

. 1993). I n these circumstances, we agree with the courts that have hel d that without such additional evidence, an enhancement for being a leader
or organizer under § 3B1.1(a) is not appropriate. See , e.g. , United State s
v. Guyto n , 36 F.3d 655, 662 (7th Cir. 1994); see also United States v

. Maxwell , 34 F.3d 1006 , 1012 (11th Cir. 1994), and United States v. Yates , 990 F.2d 1179, 1182 (11th Cir. 1993) ( per curiam ). We therefore reman d Mr. Furnish's case for resentencing in light of this opinion.

VIII. For the reasons stated, we affirm the convictions of Linda Bryson , Ronnie Furnish, and Henrietta Furnish. We remand for resentencing th e cases of Ms. Bryson and Mr. Furnish.

A true copy.

Attest:

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