United States v. Pittman

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 95-60757
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TABOR PITTMAN; THOMAS EDDY PARSONS,

Defendants-Appellants.

__________________________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
(1:95-CR-11-GR-02)
__________________________________________________________________
January 27, 1997
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellants Tabor Pittman and Thomas Eddy Parsons appeal their

convictions and sentences for conspiracy and possession with the

intent to distribute illegal drugs. We AFFIRM Parsons’ convictions

on all but one count (count 8), and REMAND for entry of a judgment

of acquittal on that count and for resentencing; we AFFIRM as to

Pittman.

I.

*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
 Appellants were convicted on one count of conspiracy to

possess cocaine with intent to distribute. Each was also convicted

on five substantive counts of possession with intent to distribute

(Parsons, cocaine; Pittman, cocaine and marijuana). Parsons and

co-defendant Eugene Parsons (appellant Parsons’ first cousin) were

acquitted on one count of attempting to possess cocaine with intent

to distribute. Eugene Parsons was also acquitted on charges of

witness intimidation and concomitant use of a firearm. Parsons was

sentenced to 98 months imprisonment; Pittman, to 120 months.

II.

Numerous issues are presented on appeal. Pittman contends

that the district court erred by failing to conduct an evidentiary

hearing on his transfer of venue motion, to grant additional

peremptory challenges, and to advise non-immunized Government

witnesses of their Fifth Amendment privilege against self-

incrimination; bases error on prosecutorial misconduct, evidentiary

rulings, multiplicity, and drug quantity findings at sentencing;

and adopts the issues raised by Parsons.

Parsons asserts that the district court erred by limiting

cross-examination, by failing to conduct an in camera review to

determine whether a file contained exculpatory information, by

denying his severance motion, and by refusing to admit impeachment

evidence; he also challenges the sufficiency of the evidence on one

count and the drug quantity findings at sentencing. As reflected

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infra, the only issues raised by Parsons that Pittman can adopt are

the limitation of cross-examination and failure to conduct in

camera review. The remaining issues are specific to Parsons and

thus are not susceptible to being adopted by Pittman.

A.

Citing extensive pretrial publicity about witness intimidation

and murder and sex charges against him and/or his co-defendants,

Pittman contends that he was entitled to a hearing on his change of

venue motion. We review the decision not to conduct an evidentiary

hearing on the motion only for abuse of discretion. United States

v. Smith-Bowman, 76 F.3d 634, 637 (5th Cir.), cert. denied, ___

U.S. ___, 116 S. Ct. 2537 (1996). “[A] defendant’s motion alleges

sufficient facts to warrant an evidentiary hearing when it is

sufficiently definite, specific, detailed, and nonconjectural, to

enable the court to conclude that a substantial claim is

presented.” Id. (internal quotation marks and citation omitted).

Along that line, “[i]n order for a defendant to justify a motion to

transfer on the basis of prejudicial publicity, he must establish

that prejudicial, inflammatory publicity so saturated the community

jury pool as to render it virtually impossible to obtain an

impartial jury.” Id. (internal quotation marks and citation

omitted).

The district court did not abuse its discretion by not

conducting an evidentiary hearing. Pittman does not contend that

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he could have presented evidence in addition to the newspaper

articles and affidavits from local attorneys that were attached to

his motion.

And, although it is unclear whether Pittman is challenging the

merits of the ruling, we note that the record supports the district

court’s finding that the newspaper articles were not biased and

included “coverage of defense charges of harassment, and community

support for the plight of the defendants.” Only two of the ten

venirepersons who had read or heard about the case through the

media were selected to serve on the jury, and both of them stated

during voir dire that the information to which they had been

exposed had not caused them to form an opinion about the case, and

that it would not affect their ability to be fair and impartial.

Accordingly, assuming Pittman intended to challenge also the denial

of a change of venue, the court did not abuse its discretion by

holding that Pittman failed to show that prejudicial publicity made

it impossible for him to obtain an impartial jury.

B.

Pursuant to FED. R. CRIM. P. 24(b), the appellants and their co-

defendant, Eugene Parsons, were given ten peremptory challenges.

All ten were used, but the defendants disagreed about whether to

strike one of the prospective jurors. Pittman claims that the

district court abused its discretion by failing to grant additional

peremptory challenges.

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 The denial of an additional peremptory challenges request is

reviewed only for abuse of discretion, e.g., United States v.

Hooper, 575 F.2d 496, 498 (5th Cir.), cert. denied, 439 U.S. 895

(1978); we find none. The record does not support Pittman’s

assertion that the juror he wanted to strike had been exposed to

pretrial publicity. Moreover, Pittman has not demonstrated that

“the jury as finally selected was other than representative and

impartial”, or that he was prejudiced by the ruling. See id.

(internal quotation marks and citation omitted).

C.

Next, Pittman challenges the district court’s not advising

non-immunized Government witnesses of their Fifth Amendment

privilege against self-incrimination before allowing them to

testify. Even assuming that Pittman has standing to claim a

violation of that privilege on behalf of the non-immunized

witnesses, see United States v. Colyer, 571 F.2d 941, 945 (5th

Cir.), cert. denied, 439 U.S. 933 (1978) (because Fifth Amendment

privilege is personal to the witness, a defendant may not claim the

witness’s privilege for his own benefit), we find no abuse of

discretion; Pittman has not shown how he was prejudiced.

D.

The next issue is the district court’s refusal to allow the

defense to cross-examine Government witness Cowart regarding any

bias he may have had in favor of the Government as a result of his

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state arrest on 5 April 1995, and his subsequent release. “A

district court has broad discretion to reasonably restrict cross-

examination; however, this discretion is limited by the Sixth

Amendment.” United States v. Mizell, 88 F.3d 288, 292 (5th Cir.),

cert. denied, ___ U.S. ___, 117 S. Ct. 620 (1996).

Cross-examination to expose a witness’s motive
for testifying is always relevant as
discrediting the witness and affecting the
weight of his testimony, and is especially
important with respect to witnesses who may
have substantial reason to cooperate with the
government. This right is particularly
important when the witness is critical to the
prosecution’s case. A criminal defendant
states a violation of the Confrontation Clause
by showing that he was prohibited from
engaging in otherwise appropriate cross-
examination designed to show a prototypical
form of bias on the part of the witness and
thereby expose to the jury the facts from
which jurors could appropriately draw
inferences relating to the reliability of the
witness.

Id. at 292-93 (emphasis added; internal quotation marks, brackets,

and citations omitted). “The constitutional right is not violated,

however, if the jury has sufficient information to appraise the

bias and motives of the witness.” United States v. Cooks, 52 F.3d

101, 104 (5th Cir. 1995) (brackets omitted).

At the conclusion of Cowart’s direct examination, the court

conducted an extensive evidentiary hearing concerning the

circumstances of Cowart’s arrest; Cowart, the arresting officer,

and the case agent testified. That testimony established that

Cowart was stopped by Deputy Sauro of the Harrison County Sheriff’s

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Department on suspicion of driving under the influence of alcohol.

After the Deputy discovered that Cowart was driving with a

suspended license, he placed Cowart in his patrol car, at which

time he smelled alcohol on Cowart’s breath. Although the Deputy

testified that he ordinarily performed field sobriety tests at the

scene, and had planned to conduct the test on Cowart prior to

taking him to the jail, he did not do so in this instance because

he became sidetracked when Cowart requested protective custody.

After Cowart told the Deputy that his life would be in danger

if he were not placed in protective custody, and that a certain

United States Customs Agent could provide verification, Deputy

Sauro contacted the Agent, who met him and Cowart at the jail.

Cowart was not given a breath test, and was charged only with

careless driving and driving with a suspended license.

The defendants took the position that Cowart was not charged

with DUI (which would have been a felony under State law because

Cowart had two previous DUI convictions, and which would have

resulted in revocation of his probation for a forgery conviction,

for which he had been sentenced to 15 years imprisonment) because

Cowart was a federal witness and because the Customs Agent had

prevailed upon State authorities to reduce the charges.

The evidence, however, did not support the defendants’ claims.

Cowart denied any knowledge that the Customs Agent had intervened

on his behalf, and testified that he asked that the Customs Agent

be contacted only because he feared being placed in the general

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prison population with Eugene Parsons, who had threatened his life.

The Customs Agent testified that he had no intention of trying to

get Cowart out of a DUI charge, but wanted only to try to make

arrangements to get Cowart “some sort of reduced bond” in order to

keep him from having to serve time in the same facility with Eugene

Parsons, who had threatened and assaulted Cowart on several

occasions. And, Deputy Sauro testified that he did not charge

Cowart with DUI because he “got caught up in the moment as to why

[Cowart’s] life was in danger” and did not take the proper steps (a

field sobriety test and breath test) for so charging him.

At the conclusion of that hearing, the district court ruled

that defense counsel “can ask [Cowart] anything about whether the

Government agent helped him” but not “any reference to the ticket

fixing”. The court stated further that defense counsel were

“entitled to go into ... assistance that the Government may have

provided [Cowart]”. Responding to requests for clarification, the

court stated: “I’ll allow you to get in the fact that [Cowart] was

stop[ped] on Highway 49, it was in April of this year, and that he

was issue[d] a citation for illegal, irregular driving, and that

[the Customs Agent] appear[ed] [at the Gulfport jail] on his

behalf.... I think that that is as far as you can go.”

In denying Parsons’ motion for a new trial on this ground, the

district court stated:

An evidentiary hearing was held on this issue
prior to offering evidence on this issue at
trial. The testimony of the agent and law

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 enforcement authorities involved in this
situation did not corroborate Parsons’
concerns that Cowart was offered preferential
treatment by the state of Mississippi because
of the alleged intervention of the [Customs
Agent]. There is no basis for a new trial
because of the defendant’s unfounded
allegations. This Court thoroughly analyzed
the defendant’s positions at the time of the
suppression hearing and denied the motion.

The district court did not abuse its discretion by refusing to

allow cross-examination about defense counsel’s unfounded

allegations that the Customs Agent had caused State officials not

to charge Cowart with DUI. Nor did the court violate the

Confrontation Clause by prohibiting Parsons from engaging in

inappropriate cross-examination about unsubstantiated allegations.

See Mizell, 88 F.3d at 293; Cooks, 52 F.3d at 104.

Even assuming an abuse of discretion, however, any error was

harmless. See Mizell, 88 F.3d at 295. The jury was aware that

Cowart was a convicted felon and that he had been granted immunity

on drug charges. The defense was not prohibited from cross-

examining Cowart on whether he was helped by the Government in

connection with the traffic stop, and he was subjected to

extensive, vigorous cross-examination about his motivation for

testifying. Under these circumstances, the jury had more than

sufficient information to appraise Cowart’s bias and motivation for

testifying. See id. at 293.

E.

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 Parsons contests the denial of a severance, citing in support

of this claim his witnesses’ testimony that they had never seen him

use drugs, and co-defendant Eugene Parsons’ conflicting testimony

that he had used cocaine with Parsons. Parsons (who did not

testify at trial) did not move for severance prior to trial, and

raised the issue in writing for the first time in his motion for

new trial. He asserts, however, that he adopted Pittman’s pretrial

motion for severance. Parsons did not furnish a record citation in

support of that assertion, and we have not found support for it in

our independent examination of the record.

Failure to move for severance prior to trial constitutes a

waiver of the issue unless the district court grants relief from

the waiver “for cause shown”. FED. R. CRIM. P. 12(b)(5), (f); United

States v. Castillo, 77 F.3d 1480, 1490 n.19 (5th Cir.), cert.

denied, ___ U.S. ___, 117 S. Ct. 180, 236, 502 (1996). In his new

trial motion, Parsons asserted that his counsel relied on Eugene

Parsons’ counsel’s false representation that Eugene Parsons’

testimony would not incriminate him (Parsons). Even assuming that

such reliance constitutes good cause for failing to move for a

severance before trial, Parsons has not established an abuse of

discretion. See id. at 1490 (denial of motion for severance

reviewed for abuse of discretion). “[S]everance is not

automatically required merely because co-defendants present

mutually antagonistic defenses.” Id. at 1491. “Determinations

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concerning the risk of prejudice in this context must generally be

left to the sound discretion of the district court if we are to

give any weight to the rule that persons indicted together should

be tried together, especially in conspiracy cases.” Id. (internal

quotation marks and citations omitted).

As the court noted in denying Parsons’ motion for new trial,

Parsons was acquitted on the count on which he and Eugene Parsons

were indicted together, and Eugene Parsons was acquitted on all

charges against him, which indicates that the jury followed the

court’s instructions to consider separately the evidence against

each defendant and as to each count. Such instructions have been

held to reduce any risk of prejudice. Id. We note also that

Parsons did not cross-examine Eugene Parsons; he did not ask for a

severance following Eugene Parsons’ testimony; and he did not seek

a limiting instruction following the incriminating testimony. In

short, Parsons has not shown the kind of “specific and compelling

prejudice” necessary to establish an abuse of discretion. See

United States v. Faulkner, 17 F.3d 745, 759 (5th Cir.), cert.

denied, ___ U.S. ___, 115 S. Ct. 193, 663 (1994).

F.

Next, Parsons charges that the district court abused its

discretion by refusing to admit evidence that he had not failed any

drug tests while on bond. He asserts that the evidence should not

have been excluded on relevance grounds because it was not offered

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to show good character, but to impeach Theresa Bryant, a Government

witness who testified that she used cocaine with Parsons eight

months before trial, while Parsons was on bond. We review

evidentiary rulings only for abuse of discretion and, even if we

find an abuse of discretion, “the error is not reversible unless

the defendant was prejudiced”. United States v. Coleman, 78 F.3d

154, 156 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 230

(1996); see FED. R. EVID. 103(a).

We find no abuse of discretion. At trial, Parsons did not

seek admission of the evidence for the purpose now asserted through

new counsel on appeal; instead, he sought to admit the evidence to

“corroborate the witnesses that have testified that they have never

seen him use drugs”. The district court ruled correctly that the

evidence was not admissible for that purpose. See United States v.

Marrero, 904 F.2d 251, 260 (5th Cir.), cert. denied, 498 U.S. 1000

(1990) (“evidence of noncriminal conduct [offered] to negate the

inference of criminal conduct is generally irrelevant”).

G.

It is claimed that the district court erred by refusing to

conduct an in camera review of the United States Marshal’s file on

the above-referenced Government witness Theresa Bryant to determine

whether it contained matter required to be disclosed pursuant to

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,

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405 U.S. 150 (1972). This contention has no merit; the district

court did not refuse to review the file.

After the jury began deliberating, the district court

conducted an evidentiary hearing on the defendants’ joint motion

for a Brady/Giglio hearing, in which they asserted that the

Government had failed to disclose all of Bryant’s prior convictions

and had failed to disclose the existence of pending federal charges

against her. At that hearing, the Assistant United States Attorney

represented to the court that there were no federal charges pending

against Bryant. In response to questions by Eugene Parsons’

counsel, a Deputy United States Marshal testified that, in February

1995, pursuant to a writ of habeas corpus ad testificandum, he

brought Bryant to Mississippi from Louisiana, where she was

incarcerated in a Parish jail on state charges; that he did not

know of any specific state charges pending against her at that time

or what happened to those charges; and that he knew of no

assistance by federal agents on any state charges.

At the conclusion of his questioning, Eugene Parsons’ counsel

requested the court to direct the United States Marshal’s office to

produce its complete file on Bryant and requested that the court

review that file in camera. The Government did not object to

producing the file or to allowing the in camera review; and the

court agreed to review it. At the conclusion of the hearing, the

court overruled the motion “as having no foundation in fact”.

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 Bryant testified extensively on direct, cross, and redirect

about her criminal history and drug abuse. Even assuming the

existence of pending state charges against her, and assuming,

further, that the Government failed to disclose the existence of

such charges, this did not constitute a Brady violation, because

the defendants presented no evidence that federal authorities had

the ability to influence the disposition of any pending state

charges, much less any evidence that Bryant actually received any

federal assistance on those charges. See United States v. Thorn,

917 F.2d 170, 176 (5th Cir. 1990).

H.

Pittman maintains that the prosecutor engaged in misconduct by

approaching witnesses during cross-examination and shouting at

them. “A criminal defendant bears a substantial burden when

attempting to show that prosecutorial improprieties constitute

reversible error.” United States v. Bermea, 30 F.3d 1539, 1563

(5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1113, 1825

(1995). “Control over the conduct of a trial, including the scope

of permissible cross-examination, is squarely within the

discretionary powers of the district court, and its ruling will be

disturbed on review only if the district court abuses that

discretion.” United States v. Waldrip, 981 F.2d 799, 803 (5th Cir.

1993) (internal quotation marks and citation omitted); see also

FED. R. EVID. 611(a) (“The court shall exercise reasonable control

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over the mode and order of interrogating witnesses and presenting

evidence so as to (1) make the interrogation and presentation

effective for the ascertainment of the truth, (2) avoid needless

consumption of time, and (3) protect witnesses from harassment or

undue embarrassment.”).

In denying Pittman’s motion for a new trial on this ground,

the district court stated:

Despite witnesses’ statements of fear and
intimidation, there is no evidence that the
alleged aggressive questioning by the
prosecutor influenced their testimony
concerning the defendants. The prosecutor was
admonished concerning his behavior. Defense
counsel also approached certain witnesses
during questioning and were not required to
remain at the podium during cross-examination.

It was within the court’s discretion to permit the prosecutor to

move away from the podium during cross-examination. And, even

assuming that the prosecutor impermissibly raised his voice, there

is no indication that this affected the witnesses’ testimony

concerning Pittman (or the other defendants).

I.

Pittman next claims reversible error because the Government

was permitted to cross-examine him about his marital difficulties

and about a positive drug test result after his arrest. The

admissibility of evidence offered to impeach a criminal defendant

who testifies is committed to the “very substantial” discretion of

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the district court. United States v. Farias-Farias, 925 F.2d 805,

809 (5th Cir. 1991).

1.

Pittman testified on direct examination that he had tried

marijuana in the past, but that he did not like it because “it

makes you a lazy bum”; and that he had tried cocaine, but could see

what it has done to people and would “rather keep my money in my

pocket”. On cross-examination, he testified, without objection,

that his last cocaine use had been approximately two months prior

to trial. The Government then questioned him about failing a drug

test on that occasion.

Pittman contends that the examination about the drug test

violated FED. R. EVID. 404(b) (evidence of other crimes, wrongs, or

acts inadmissible to show action in conformity therewith). But, he

did not object on that basis at trial; instead, his counsel

asserted that “[h]e’s already answered, he admitted it, he said I

did. I think anymore barraging on this particular issue is totally

irrelevant. It’s just an attempt to bolster a bad urine screen;

it’s totally irrelevant. He’s admitted he had the dirty urine, and

that’s the end.”

It goes without saying that, “[i]n order to preserve a claim

of error for appellate review, a party must timely object or move

to strike the objectionable evidence, stating the specific ground

of the objection.” United States v. Martinez, 962 F.2d 1161, 1165-

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66 (5th Cir. 1992) (emphasis added); see also FED. R. EVID.

103(a)(1) (“[e]rror may not be predicated upon a ruling which

admits ... evidence unless a substantial right of the party is

affected” and “a timely objection or motion to strike appears of

record, stating the specific ground of objection, if the specific

ground was not apparent from the context”); FED. R. CRIM. P. 52(b).

Because Pittman did not object at trial on Rule 404(b)

grounds, we review the claimed violation of that Rule only for

plain error. See FED. R. EVID. 103(d); FED. R. CRIM. P. 52(b); United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc)

(if appellant shows clear or obvious error that affects his

substantial rights, appellate court has discretion to correct error

if such error seriously affects the fairness, integrity, or public

reputation of judicial proceedings), cert. denied, ___ U.S. ___,

115 S. Ct. 1266 (1995). There was no plain error. Because

Pittman’s testimony about cocaine and marijuana on direct

examination implied that he had not recently used drugs, the

Government was entitled to question him about such use, as

evidenced by the test result. In any event, in the light of his

unobjected-to testimony that he had used cocaine two months before

trial, the admission of the evidence about a failed drug test

following such use was harmless.

2.

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 Nor did the district court abuse its discretion by allowing

the Government to cross-examine Pittman about his domestic

situation. On direct examination, Pittman testified that he was

“currently married” to Lucy Pittman; that they had two children;

and that they lived with his mother-in-law. On cross-examination,

over Pittman’s objection on relevance grounds, he admitted that he

and his wife were separated. As the district court noted in

overruling Pittman’s objection, Pittman’s domestic situation became

relevant (as to Pittman’s credibility) when he testified about it

on direct examination.

J.

Pittman contends that counts 2, 3, 5 (possession with intent

to distribute cocaine on three separate occasions) and part of

count 10 (possession with intent to distribute 17 pounds of

marijuana and 123.4 grams of cocaine from November 1990 through

October 1994) merged with count 11 (possession with intent to

distribute 510.5 grams of cocaine from July 1993 through December

1994), and should have been dismissed. “We review issues of

multiplicity de novo.” United States v. Nguyen, 28 F.3d 477, 482

(5th Cir. 1994).

There was no multiplicity. Each count charged separate and

distinct violations of the law: count 2, eight to ten ounces of

cocaine obtained by Cowart and Pittman on a trip to Houston in July

1992; count 3, a kilogram of cocaine obtained by Cowart and Pittman

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on a trip to Houston in August 1992; count 5, Pittman’s

distribution of 2.34 grams of cocaine to John Jones on March 24,

1993; count 11, Pittman’s distribution of cocaine to Parsons and

Theresa Bryant from July 1993 through December 1994; and count 10,

sales of marijuana and cocaine by Pittman to numerous persons from

November 1990 through October 1994, but not including the sales

charged in the other counts in issue.

K.

Parsons maintains that the evidence on count 8 (possession

with the intent to distribute 3.5 grams of cocaine) was

insufficient because it proved no more than simple possession of

cocaine. The Government responds that the evidence is sufficient

to convict him as an aider and abetter because he paid his employee

to make the cocaine purchase for him.

Because Parsons moved for a judgment of acquittal at the close

of the Government’s case-in-chief and renewed that motion at the

close of all the evidence, we review his sufficiency claim to

determine whether a rational trier of fact could have found that

the Government proved the essential elements of the crime charged

beyond a reasonable doubt. E.g., United States v. Webster, 960

F.2d 1301, 1307-08 (5th Cir.), cert. denied, 506 U.S. 927 (1992).

“To be guilty of aiding and abetting possession of drugs with

intent to distribute, [the] defendant must have aided and abetted

both the possession of the drug and the intent to distribute it.”

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United States v. Williams, 985 F.2d 749, 753 (5th Cir.), cert.

denied, 510 U.S. 850 (1993) (emphasis added); see also United

States v. Jaramillo, 42 F.3d 920, 923 n.2 (5th Cir.) (emphasis

added) (“[t]he government must ... prove both aspects of the crime,

possession and intent to distribute, to sustain a conviction for

aiding and abetting possession of cocaine with intent to

distribute”), cert. denied, ___ U.S. ___, 115 S. Ct. 2014 (1995).

The evidence on count 8 consisted of the following. Freddy

Odom testified that he worked for Parsons as a process server and

performed other services for him; that, in 1992, Parsons asked him

if he knew where Parsons could obtain cocaine; that he purchased an

“eight-ball” (3.2 grams) of cocaine from Tommy Roberts and

delivered it to Parsons at Parsons’ office; that Parsons paid him

$200 for obtaining the cocaine; and that he subsequently paid

Roberts. Odom testified further that Roberts later told him that

Parsons subsequently tried to purchase cocaine directly from

Roberts, but that Roberts would not sell it to him. Roberts

corroborated Odom’s testimony, except that he testified Odom did

not pay him for the cocaine.

It goes without saying that this evidence is more than

sufficient to prove Parsons possessed the cocaine obtained for him

by Odom; but, it is insufficient to prove intent to distribute.

Although there was evidence that Parsons frequently distributed

cocaine by giving it to, or sharing it with, friends and

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acquaintances, the Government did not introduce evidence that

Parsons shared any of the cocaine obtained via Odom from Roberts.

Although intent to distribute can be inferred from the possession

of a large quantity of narcotics, e.g., United States v. Lucien, 61

F.3d 366, 376 (5th Cir. 1995), that inference is not applicable

here, in light of the evidence that Parsons was a heavy cocaine

user (Theresa Bryant testified that she and Parsons used “maybe an

ounce” (28.35 grams) of cocaine in one night).

As noted, the Government asserts that Parsons aided and

abetted the distribution by having his employee, Odom, obtain

cocaine for him; but, for the reasons stated above, this does not

support an inference that Parsons intended to distribute the

cocaine; no rational trier of fact could make such a finding.

Accordingly, the Government failed to present sufficient evidence

to satisfy one of the two elements necessary for proving aiding and

abetting possession with intent to distribute. In short, to affirm

on this count, on the evidence presented, would mean that any

purchase of cocaine through a middleman would constitute aiding and

abetting possession with intent to distribute. The fact that

Roberts would not sell directly to Parsons does not alter this

conclusion. It is true that, by using Odom, Parsons made the

illegal sale possible; but, that is no different from Parsons

purchasing directly; such a purchase makes distribution possible.

The distribution was only to and for Parsons.

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 L.

Conceding that the issue is being raised for the first time on

appeal, Parsons claims that the district court erred by including

amounts of cocaine possessed for personal use in calculating his

base offense level under the Sentencing Guidelines. Parsons does

not specify the amount of cocaine that he allegedly possessed for

personal use, and the evidence introduced at the sentencing hearing

provides no basis for making such a calculation.

Because Parsons failed to object to the inclusion of amounts

of cocaine possessed for personal use in calculating his offense

level, the district court’s inclusion of those amounts is reviewed

only for plain error. E.g., United States v. Vital, 68 F.3d 114,

118-19 (5th Cir. 1995); Calverley, 37 F.3d at 162-64. Parsons

relies on United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir.

1993), in which the Ninth Circuit held that the quantity of drugs

possessed merely for personal use should not be included in

calculating a defendant’s base offense level. The Eleventh Circuit

recently rejected the analysis in Kipp and joined the First,

Seventh, Eighth, and Tenth Circuits in holding that drugs intended

for personal use by a defendant are properly included in

determining their base offense levels. United States v.

Antonietti, 86 F.3d 206, 209-10 (11th Cir. 1996). Our court has

not specifically addressed the issue, but it is not necessary for

us to do so in this instance, because the amount of drugs for which

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a defendant will be held accountable is a factual finding, e.g.,

United States v. Bermea, 30 F.3d at 1575; and, “[q]uestions of fact

capable of resolution by the district court upon proper objection

at sentencing can never constitute plain error.” Vital, 68 F.3d at

119.

M.

Pittman contends also that the district court erred in

calculating the quantity of drugs attributable to him. Because

Pittman preserved the issue by objecting to the PSR’s calculation

and by objecting at sentencing, we review the finding under the

“clearly erroneous” standard. United States v. Bermea, 30 F.3d at

1575. The clear error standard is well-known, to say the least:

“A finding of fact is clearly erroneous when, although there is

enough evidence to support it, the reviewing court is left with a

firm and definite conviction that a mistake has been committed.”

Id.

Pittman asserts that the district court should have calculated

his sentence on the basis of lesser amounts testified to at trial,

rather than relying upon the PSR, which was based on information

provided by the case agent. Pittman did not offer any evidence at

sentencing to dispute the amount of drugs calculated in the PSR,

which the district court accepted. Because “a PSR generally bears

sufficient indicia of reliability to be considered by the trial

court as evidence in making the factual determinations required by

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the sentencing guidelines”, id., and because Pittman offered no

contradictory evidence, the district court did not clearly err by

accepting the PSR’s calculation of the amount of drugs attributable

to Pittman.

III.

For the foregoing reasons, Parsons’ convictions on all but

count 8 are AFFIRMED; his conviction on that count is REVERSED, and

the case is REMANDED for entry of a judgment of acquittal on that

count, and for resentencing. Pittman’s convictions and sentences

are AFFIRMED.

AFFIRMED in part, REVERSED in part, and REMANDED

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