### *The Hon. James M. Rosenbaum, United States District Judge f or

the District of Minnesota, sitting by designation. _____________ No. 95-2210EA

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the Eastern District * of Arkansas. James Alfred Miller, * * Appellant. *

___________ Submitted: June 10, 1996 Filed: August 6, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circui t Judge, and ROSENBAUM, District Judge. *

___________ RICHARD S. ARNOLD, Chief Judge.

James Alfred Miller was convicted of three drug-related felonies and sentenced to a prison term of twenty-four years and four months. We affir m these convictions, but remand this case to the District Court fo r resentencing.

I.

At tri al, the government introduced evidence showing that fro m January 1993 through April 1994, James Miller sold methamphetamine

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to a number of people . One of Miller's principal buyers was Don Roe, who was a drug dealer. R oe testified that he generally bought four ounces of methamphet amine at a time, at a cost of $5,000 per purchase. On tw o occasions, Roe purchased one-pound quantities. The defendant sometime s "fronted " these drugs, that is, he gave them to Roe and did not deman d payment until a later date. Roe testified that on September 5, 1993, he and Jackie Bingham Williams went to Miller's hou se to buy methamphetamine. Roe took this purchase back to his home, where the police discovered i t later that day.

A number of witnesses corroborated Roe's testimony. Lisa Gulledg e stated that she accompanied Roe, whom she described as a well-known drug dealer, on trips to Miller's house to purchase methamphetamine. Mar k Kenyon, who sold methamphetamine for Roe, testif ied that in early 1993, he and Roe purchased methamphetamine from Miller. Donna Carter said that she bought methamphetamin e from Roe, and had seen the defendant dispense this drug to Gulledge, Kenyon, and Kathy Reeves. Als o, Jackie Bingham Williams confirmed Roe's account of the events of September 5, 1993.
Two other important witnesses were J erry Wilson and Veronica Simone. Wilson testified that , beginning in the spring of 1993, he purchased oneeighth of an ounce of methamphetamine from Miller every month. Eventually , he started buying a pound at a time. The defendant sometimes fronted thes e drugs to Wilson, who resold them. Veronica Simo ne testified that when she was seven and one-hal f months' pregnant, Miller sold her methamphetamine.
The jury convicted Miller of conspir ing to distribute and to possess with intent to distribute methamphetamine, 21 U.S.C. § 846, distributing methamphetamine, 21 U.S.C. § 841(a)(1), and distributing methamphetamine to a pregnant person, 21 U.S.C. § 861(f). Deter mining that Miller was the "orga nizer or leader of a criminal activity that involved five or mor e participants,"

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U.S.S. G. § 3B1.1(a), the District Court increased Miller's base offens e level by four levels and sentenced him to a prison term of twenty-fou r years and four months.

II.

On appeal, Miller argues that there was insufficient evidence t o sup port his conspiracy conviction, and that the District Court erred b y refusing to grant his request for a continuance and by not permitting a number of proposed defense witnesses to testify. Miller also asserts that in sentencing him, the District Court should not have applied a four-level enhancement.

A.

We begin with Miller's claim that the government did not produc e
enou gh evidence to support his conspiracy conviction. At trial, th e government introduced evidence that Miller sold one-pound quantities o f methamphetamine, wort h $10,000 each, to Don Roe, a known drug dealer, and to Jerry Wilson. The government argues that the jury could have inferred that because Miller made such large sales, he knew that his purchasers wer e reselling the methamphetamine. According to the government, the fact that Miller "fronted" the methamphetamine to Roe, Wilson, Mark Kenyon, and Kathy Reeves also shows that Miller knew that the methamphetamine was bein g resold, because the only way that Miller's buyer s could have paid him back was to resell the drugs.

To convict Miller of conspiracy, the government had to "establis h that an agreement to engage in distributing drugs existed between two or more people, includin g the defendant." United States v. Rodgers , 18 F.3d 1425, 1428-29 (8th Ci r. 1994). Although "numerous sales of small amounts

. . . fo r personal use are insufficient to support a [conspiracy ] conviction," United S tates v. Eneff , 79 F.3d 104, 105 (8th Cir. 1996), we have held

### A num ber of circuits disagree with this view. See Unite d 1 

### States v. Lennick , 18 F.3d 814, 819 (9th Cir.) ("[t]o show a conspiracy, the government mus t show not only that [the defendant] gave drugs to other people knowing that they would distribut e them, bu t also that he had an agreement with these individuals to s o fur ther distribute the drugs."), cert. denied , 115 S. Ct. 16 2 (1994); United States v. Lechu ga , 994 F.2d 346, 347 (7th Cir.) (en ba nc) (the sale of "large quantities of controlled substances , without more, cannot sustain a conspiracy conviction"), cert
. denied , 114 S. Ct. 482 (1993); United States v. Howard , 966 F.2 d 1362, 1364 (10th Cir. 1992) (" [t]he huge quantity of crack cocaine involved in this case permits an inference of conspiracy, but b y itself this is not enough to convict defendant"). Neverthel ess, as a panel, we are not free to depart from our precedents.
-4- that "evidence of multiple sales of resale quantities of drugs i s sufficien t in and of itself to make a submissible case of conspiracy t o distribute ." Ibid. The government did show that Miller sold resal e 1 quantities of drugs. This evidence was, therefore, sufficient to convict Miller of conspiracy.

B.

Next, Mi ller asserts that the District Court erred by not grantin g his request for a con tinuance. There is "little question that a district court has wide discretion in ruling on motions for continuances, and a
cou rt's exercise of that discretion will rarely be overturned." Unite d States v. Pruett , 788 F.2d 1395, 1396 (8th Cir. 1986). We do not believe that the District Court abused its discretion in this case.

Miller based his request for a continuance, which he made on th e morning of trial, on three grounds. First, Miller noted that th e prosecution had not disclosed that its principal witness, Don Roe, had bee n arrested in 1993 for drug possession and had tried to bribe the polic e officers who had arrested him. (The government says that its failure to disclose these facts was inadvertent.) Miller's counsel did discover this information the week before trial and was able to use it to cross-examine Roe. Miller suffered

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no prejudice from the Court's failure to grant a continuance.

The same is true of the other two grounds on which Miller based his motion for a continuance -- that the prosecution had not told Miller until the d ay before trial that Charlotte Kirks, a government witness, had a criminal record, and that the prosecution did not disclose that Jacki e Bingha mWilliams, another government witness, had lost custody of he r child. I n each case, the prosecution's failure to disclose th e information, which it says was inadvertent, did not interfere with th e ability of Miller's counsel to use these facts during cross-examination. Thus, the District Court's refusal to grant a co ntinuance was not an abuse of discretion.

C.

We now ad dress Miller's evidentiary claims. The District Court did not permit Miller to call a number of witnesses who, Miller asserts, would hav e impeached the testimony of Don Roe. Weldon Davis, the Jailor o f Pulaski County, Arkan sas, would have testified that on September 6, 1993, when Roe was detained on state drug charges, Roe told a fellow prisone r that only two people, neither of whom was Miller, knew about the pound of methamphetamine the police had discovered in his house on September 5. Ro e testified that he never made this statement.

We believe that the District Court erred by refusing to allow th e defe ndant to question Weldon Davis. A party may introduce extrinsi c evidence of a witness's prior inconsistent statement if the witness i s given a chance to explain the inconsistency, the opposing party is afforde d
an opportunity to question the witness about the inconsistency, and th e incons istent statements are material to the substantive issues of th e trial. Fed. R. Evid. 613(b); United States v. Roulette , 75 F.3d 418, 423 (8th Cir. 1996). Miller's lawyer asked Roe to explain his prior statement ,

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and the government had the opportunity to question Roe on redirec t examination. Also, Weldon Davis's testimony would have been relevant to whether Miller sold Roe the methamphetamine that the police found in Roe's house -- certainly a substantive trial issue.

However, this error does not cause us to reverse Miller's convi ction. Jackie Bingham Willia ms testified that she accompanied Roe on his trip to Miller's house to purchase the one pound of methamphetamine that the polic e discovered on September 5. Williams's testimony corroborates Roe's accoun t of the events of September 5 and leads us to conclude that the Distric t Court's refusal to allow Weldon Davis to testify was harmless error.
The defendant also asserts that he should have been permitted t o call
as witnesses three police officers who would have testified that Roe had attempted to bribe them. The officers' testimony would not have shown tha t Roe had made an inconsistent statement material to whether Miller wa s guilty of the crimes for which he was being trie d. Instead, the officers' statements would have been used purely to attack Roe's character. Trials
are about charges in the indictment, not the character of the witnesses. Thus, although Federal Rule of Evidence 608(a) permits a party to introduc e evidence regarding a witness's reputation for truthfulness, Rule 608(b ) "does not permit specific instances of a witness 's conduct to be proved by extri nsic evidence." United States v. Johnson , 968 F.2d 765, 766 (8t h Cir.), cert. denied , 506 U.S. 980 (1992) (citation omitted). We agree wit h the District Court that the proposed testimony of the three officers was inadmissible.

D.
Finally, Miller argues that the Dist rict Court should not have given him a four-level enhancement for being the "organizer or leader of a crimin al activity that involved five or more participants." U.S.S.G

. § 3B1.1(a). Typically, this enhancement

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applies to a defendant who employs or otherwise arranges for intermediarie s to sell his drugs. See, e.g. , United States v. McMullen , 86 F.3d 135, 138 (8th Cir. 1996); United States v. Logan , 54 F.3d 452, 456 (8th Cir. 1995); United St ates v. Greene , 995 F.2d 793, 802 (8th Cir. 1993). We have , however, "broadly interpreted the terms `organiz er' and `leader,'" United States v. Maxwell , 25 F.3d 1389, 1399 (8th Cir.) , cert. denied , 115 S. Ct. 61 0 (1994). Thus, the defendant need not "directly control" hi s intermediaries. Ibid . But, if the words "organizer" and "leader" are to have their ordinary meaning, a defendant must do more than sell for resale

. See United States v. Rowley , 975 F.2d 1357, 1364 n.7 (8th Cir. 1992) ("we have always required evidence that the defendant directed or procured the aid of underlings").
Miller was not the "organizer" or "leader" of a conspiracy. Al though Miller sold large enough quantities of methamphetamine that it i s reasonable to infer that he knew the drugs were being resold, Miller did not have any involvement in the resales. There is no evidence that Miller controll ed his buyers in their resale of the methamphetamine. Th e government contends t hat the four-level enhancement should, nevertheless, apply because Miller supplied the drugs that his co-conspirators late r resold. But, as the Fifth Circuit has explained, controlling property doe s not make one an "organizer" or a "leader":
Applying a plain-meaning approach to "leader" and "organizer," we note that their defin itions relate to supervision of people only. Leader is defined as a person who leads as a commander. Web ster's Third New International Dictionary 1283 (1981)

. Organizer is defined as a person who travels for th e purpose of est ablishing new organizations. Id. at 1590. A commande r commands people, and organizations are composed of people

. Un like a manager, a leader's or organizer's actions mus t di rectly affect other people. Consequently, a leader o r organizer must control or influence other people.

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United States v. Ronn ing , 47 F.3d 710, 712 (5th Cir. 1995). We therefore agree with Miller tha t the District Court should not have applied a fourlevel enhancement on this record.

III.

For these reasons, we affirm Miller's convictions, vacate hi s sentence, and remand this case to the District Court for resentencing.

A true copy.

Attest:

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