United States v. Morgan

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-10185
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCUS MORGAN, also known as Red;
RYAN JACKSON, also known as Anthony, also known as Tony;
JARVIS WRIGHT, also known as Jaye,

Defendants-Appellants.

______________________________________________

Appeals from the United States District Court for the
Northern District of Texas
______________________________________________
July 15, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves three appellants who were

convicted of numerous drug-related offenses. Appellants raise

various challenges to the sufficiency of the evidence, evidentiary

rulings, and their sentences. Finding no reversible error, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The narcotics conspiracy and related convictions in this case

result from an undercover Federal Bureau of Investigation (“FBI”)

operation in Dallas, Texas. FBI Agent Donna Brown and Officer Mark
Webster of the Dallas Police Department conducted an undercover

operation in the Frazier Courts area in Dallas. Agent Brown and

Officer Webster infiltrated the area and made numerous undercover

purchases of crack cocaine, many of which were recorded on

audiotape and/or videotape.1 As a result of their undercover

efforts, a grand jury returned a 49-count indictment against 24

defendants. All 24 defendants were charged with conspiracy to

distribute cocaine between December 1, 1994 and August 8, 1995, and

many were charged with other offenses as well. The three

appellants in this case were tried together.

Appellant Marcus Morgan was charged with conspiracy to

distribute cocaine base (21 U.S.C. § 846), two counts of

maintaining a building for the purpose of distributing cocaine base

(21 U.S.C. § 856(a)(1)) and aiding and abetting the same (18 U.S.C.

§ 2), employment of a minor to assist in drug trafficking (21

U.S.C. §§ 861(a)(1)) and aiding and abetting the same (18 U.S.C. §

2), three counts of distribution of cocaine base near a public

school (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 860(a)) (one count

included aiding and abetting, 18 U.S.C. § 2). On November 2, 1995,

a jury returned a verdict of guilty on the conspiracy count and

three counts of distribution of cocaine base near a school. The

jury found Morgan not guilty on both counts of maintaining a place

for distributing crack cocaine. The district court sentenced

1
The facts are set out in greater detail as needed to
review each appellant’s sufficiency points.

2
Morgan to 240 months on each count to run concurrently and an

eight-year term of supervised release.

Jarvis Wright was charged with conspiring to distribute

cocaine base (21 U.S.C. § 846), maintaining a building for the

purpose of distributing cocaine base (21 U.S.C. § 856(a)(1)) and

aiding and abetting (18 U.S.C. § 2), and four counts of

distributing cocaine base near a school (21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(iii), and 860(a)) and aiding and abetting (18 U.S.C.

§ 2). The jury returned a verdict of guilty on all six counts

against Wright. The district court sentenced Wright to 240 months

on each count to run concurrently and an eight-year term of

supervised release.

Ryan Jackson was charged with conspiring to distribute cocaine

base (21 U.S.C. § 846) and four counts of distributing cocaine base

near a public school (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

(B)(iii), and 860(a)) and aiding and abetting the same (18 U.S.C.

§ 2). He was convicted of all charges save one count of

distributing or aiding and abetting the distribution of cocaine

base near a school. The district court sentenced Jackson to 210

months on each count to run concurrently and five-, six-, and

eight-year terms of supervised release to be served concurrently.

The defendants timely filed notices of appeal.

Wright and Jackson seek to adopt by reference their co-

appellants’ briefs in their entirety. Federal Rule of Appellate

Procedure 28(I) permits an appellant to “adopt by reference any

part of the brief of another [appellant].” FED. R. APP. P. 28(I).

3
This circuit, however, has held that an appellant may not adopt by

reference fact-specific challenges to his conviction. See United

States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996)(citations

omitted). Thus, Jackson may not adopt Morgan’s and Wright’s

challenges to the sufficiency of the evidence, nor may Wright adopt

Morgan’s and Jackson’s challenges to the district court’s

application of the sentencing guidelines. See id. (noting that

sufficiency and sentencing challenges may not be adopted by

reference). The government does not challenge Wright’s adoption of

Morgan’s and Jackson’s argument that there was a material variance

between the indictment and the proof at trial.

DISCUSSION

I. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence to support a jury

verdict, we determine whether, viewing the evidence and the

inferences that may be drawn from it in the light most favorable to

the verdict, a rational jury could have found the essential

elements of the offense beyond a reasonable doubt. United States

v. Sneed, 63 F.3d 381, 385 (5th Cir. 1995) (citing United States v.

Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied sub

nom. Polley v. United States, 504 U.S. 978, 112 S. Ct. 2952

(1992)), cert. denied, 116 S. Ct. 712 (1996).

A. Conspiracy (Wright and Morgan)

Both Morgan and Wright challenge their conspiracy convictions

on the grounds of insufficient evidence. To establish a drug

conspiracy in violation of 21 U.S.C. § 846, the government must

4
prove beyond a reasonable doubt that (1) an agreement existed to

violate narcotics laws, (2) the defendant knew of the agreement,

and (3) the defendant voluntarily participated in it. United

States v. Misher, 99 F.3d 664, 667 (5th Cir. 1996) (citation

omitted), petition for cert. filed, No. 96-1983 (Mar. 17,

1997)(citations omitted). The jury may infer any element of the

conspiracy from circumstantial evidence. United States v.

Inocencio, 40 F.3d 716, 725 (5th Cir. 1994)(citations omitted);

Misher, 99 F.3d at 668 (citations omitted). Moreover, a conspiracy

conviction can rest solely on the uncorroborated testimony of an

accomplice if the testimony is not on its face insubstantial.

United States v. Gibson, 55 F.3d 173, 181 (5th Cir. 1995) (citing

United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987)).

Melvin Ammons, John Stuart, and Johnny Robinson testified that

they had an agreement to distribute crack cocaine in the Frazier

Courts area. The record shows that Ammons, Stuart, and Robinson

occupied one of the top rungs of the drug-dealing ladder in this

area. Ammons bought cocaine in Dallas and Los Angeles for

distribution in the Frazier Courts area. Stuart and Robinson sold

crack from Ammons’s duplex on Frank Street. Andre Rogers was

another key player who appears to have occupied an intermediate

rung. Rogers employed appellant Jackson, bought crack from Ammons,

Stuart, and Robinson, and sold crack to Jackson, Morgan, and

Wright.

The record also supports an inference that Frazier Courts was

a protected territory for the distribution of crack cocaine; that

5
is, dealers in the area would not allow just anyone to sell crack

cocaine in the area. Dealers were equally choosy about their

clientele. Both Stuart and Rogers testified that they would not

sell crack cocaine to someone they did not know. Agent Brown’s and

Officer Webster’s testimony also bears this out: to make undercover

purchases of crack cocaine, they had to have area residents

involved in the drug scene introduce them to dealers.

1. Wright

The record in this case is sufficent to allow a reasonable

jury to conclude beyond a reasonable doubt that Wright knew of and

voluntarily participated in an agreement to distribute crack

cocaine in the Frazier Courts area.

Wright made crack cocaine purchases from several of the key

members of the Frazier Courts conspiracy. During 1995, Stuart sold

and “fronted” crack (i.e., allowed Wright to pay for crack with the

proceeds of its sale to others) to Wright. Robinson also fronted

crack to Wright. Wright twice attempted to purchase crack from

Ammons “on consignment.” Ammons testified that he refused because

it was “common knowledge” that Wright was “working for” Stuart.2

Wright also purchased crack from Andre Rogers.

2
Wright apparently argues that a colloquy between the
district court and Stuart at the sentencing hearing shows that the
district court found Stuart to be a credible witness and that
because Stuart testified that Wright did not work for him in 1995,
Ammons’s testimony to the contrary should have been discredited by
the jury. Credibility issues are for the finder of fact and do not
undermine the sufficiency of the evidence. See United States v.
Davis, 61 F.3d 291, 297 (5th Cir. 1995), cert. denied sub nom.
Jefferson v. United States, 116 S. Ct. 961 (1996)(citing United
States v. Bailey, 444 U.S. 394, 414-15, 100 S. Ct. 624, 637
(1980)).

6
 Wright did not purchase crack cocaine only for his personal

use. Wright concedes that the government proved that he sold crack

to Officer Webster on April 19, 1995, April 26, 1995, May 23, 1995,

and July 18, 1995. The government also presented evidence that

Wright distributed crack in the neighborhood.3 According to

Rogers, Wright once asked Rogers to let him “have a customer.”

Wright also referred Officer Webster to 2939 School Place, an

apartment out of which he and his relatives Darren Choice and

Shawntee Cherry sold drugs. When Officer Webster made a purchase

of crack from Shawntee Cherry, Wright paged him. Officer Webster

testified that Wright first asked him why he had purchased from

Cherry, but then said “oh, well, it doesn’t really matter, he works

for me, it’s all the same.”

All these pieces of evidence, especially in light of other

testimony that Frazier Courts was a protected area where only

insiders could sell crack, are sufficient to support Wright’s

conspiracy conviction.

2. Morgan

The evidence of Morgan’s participation in the crack-

distribution conspiracy is sufficient as well. The record

demonstrates that Morgan bought crack from Ammons, Stuart, and

Robinson during 1995, made two crack sales to undercover officers

3
Wright also argues that his affiliation with a gang could
not be used to prove the conspiracy. This argument is frivolous.
The government did not introduce evidence at trial of Wright’s
affiliation with the 415 Bloods, much less did it rely on that
affiliation to prove conspiracy.

7
during the same period, and was aware of at least a tacit agreement

between Ammons, Stuart, and Robinson.4

In March 1995, Morgan referred Officer Webster to Andre Rogers

for the purchase of crack cocaine. Ammons testified that in May

1995, Morgan approached him to buy crack cocaine. He told Ammons

that he was buying the crack because Rogers was no longer at his

house at 2821/2823 Carter, but his customers were “still coming

down there” so Morgan “wanted to make some money.” It requires

only a small and permissible inferential step to conclude that

Morgan was taking over Rogers’s role in distributing cocaine in

that part of Frazier Courts.

On June 15, 1995, Morgan flagged Officer Webster down. Morgan

told Officer Webster he was “back in power.” Officer Webster then

purchased crack cocaine from Morgan. During the purchase, Officer

Webster saw numerous small baggies of crack in Morgan’s car,

further supporting the inference that Morgan was distributing crack

in the area.

The record also contains strong evidence that Morgan knew of

the agreement between Stuart, Ammons, and Robinson. Stuart twice

sold crack cocaine to Morgan at Ammons’s Frank Street duplex. On

the first occasion, Morgan purchased approximately 7 grams of crack

cocaine for $200. The next time, he purchased an ounce. Stuart

testified that he tried to charge Morgan $450. Morgan apparently

4
Morgan asserts that his first sale to Webster on January
9, 1995 was not evidence of his knowing participation in any
conspiracy because Ammons, Stuart, and Robinson had not yet entered
into an agreement at that time. Even without this sale, the
evidence is sufficient to support Morgan’s conviction.

8
had bought an ounce from Ammons for $400; Morgan protested to

Stuart that “Sinky [Ammons] let me have them for 4." Stuart

testified that he reduced the price to $400 “out of respect for the

duplex [on Frank Street] and the business relationship we all had.”

On another occasion in 1995, Morgan came to Ammons’s residence

to purchase crack cocaine. When Morgan arrived, Ammons and

Robinson were cooking powder cocaine into crack cocaine. Ammons

instructed Robinson to tell Morgan that it would be awhile before

the crack was finished. When the crack was ready, Robinson

delivered it to Morgan on Carter Street. Morgan bought

approximately 60 grams of crack in this transaction alone.

Viewing the evidence in the light most favorable to the

verdict, there is substantial evidence from which the jury could

conclude that there was an agreement to sell crack cocaine in the

Frazier Courts area and that Morgan was aware of and voluntarily

participated in that agreement.

B. Crackhouse Statute (Wright)

Wright challenges the sufficiency of the evidence to support

his conviction under 21 U.S.C. § 856(a)(1) for maintaining a place

for the distribution of a controlled substance or aiding and

abetting the same.

A conviction under 21 U.S.C. § 856(a) (the “crackhouse

statute”) requires the government to show that the defendant (1)

knowingly (2) opened or maintained a property (3) for the purpose

of manufacturing, distributing, or using the drug. Gibson, 55 F.3d

at 181. Only the second element is at issue in this case.

9
Although this circuit has previously encountered the “maintenance”

element of Section 856(a)(1), the evidence presented in those cases

allowed us to paint with a broader brush than the evidence in this

case will permit. See United States v. Roberts, 913 F.2d 211 (5th

Cir. 1990), cert. denied sub nom. Preston v. United States, 500

U.S. 955, 111 S. Ct. 2264 (1991); United States v. Onick, 889 F.2d

1425 (5th Cir. 1989), en banc reh’g denied, 894 F.2d 1335 (1990).5

During an undercover transaction on April 26, 1995, Wright

told Officer Webster that he could also contact Darren Choice and

Shawntee Cherry, Wright’s relatives, at 2939 School Place to

purchase narcotics. Wright called the School Place apartment “our

spot” and gave Webster the address as “the place from which he sold

his dope.” That night Webster went to the address and bought crack

from Cherry in the parking lot. Webster testified that Wright

later told him that Shawntee Cherry “worked for him.” Donald

Greer, Wright’s uncle and a co-defendant who pleaded guilty before

trial, testified that Wright was known to sell drugs from “Shawn’s

house” on School Place “in the projects.”

Two and a half months later, Webster returned to the

apartment. When Webster entered, Wright was lying on the couch.

Wright motioned Webster in and instructed an unidentified man “to

go to the closet and remove a plastic bag . . . and deliver it to

Mr. Wright.” Wright then sold the crack to Webster. When the

police searched 2939 School Place, they found a baggy containing

5
On several other occasions, we have considered the “for
the purpose of” element, see Gibson, 55 F.3d at 181; United States
v. Chen, 913 F.2d 183, 187-90 (5th Cir. 1990).

10
crack, along with a plate and a razor blade, more baggies, and

white powdery residue, although these items were not directly

linked to Wright. The record does not contain evidence Wright paid

rent for the apartment or that he lived in the apartment. The

apartment lease was in the name of Charisee Choice, another of

Wright’s relatives. Wright argues that even if crack was

distributed from the School Place apartment, there is no evidence

that he “maintained” the apartment within the meaning of the

statute.

Although neither Roberts nor Onick squarely controls our

disposition here, we draw guidance from them. Onick offers several

hints as to the meaning of maintenance. In Onick, the evidence

showed that the defendant lived in the house he was found to have

maintained. Papers found at the house showed that the defendant

listed it as his home address; clothes found there were labeled

with his nickname, and bottles of prescription medicines bore his

name; and he “selected clothing from one of the closets to wear to

the police station.” 889 F.2d 1430. Based on this evidence, the

court concluded that the defendant had “dominion and control” over

the house, and thus had constructive possession of drugs in the

house. Id. Against this factual backdrop, we held that “the jury

could infer that Tolliver maintained the house because he lived

there.” Id. at 1431.6

6
We reversed the conviction of another defendant in Onick
who did not live at the house. Id. at 1431. We noted, however,
that we did not “mean to suggest that living on the premises is
either necessary or sufficient for conviction under this statute.”
889 F.2d at 1431 n.2.

11
 In Roberts, this court gave a clear signal that the

constructive possession concepts of “dominion and control” are

relevant to the maintenance inquiry. Roberts, 913 F.2d at 221.

The evidence in Roberts was strong: the defendant “paid most of the

rent” on the condominium; he attempted to “swap” the condominium

for another place; he was present when the police searched the

place and was heard “issuing orders to the condominium’s

occupants”; and a government informant had previously seen him

“cutting cocaine” inside the residence. Id. From this evidence,

the court concluded that the defendant “did exercise sufficient

dominion and control” to support a finding that he “opened or

maintained” the condominium. Id.

Both Onick and Roberts suggest that dominion and control over

a place are relevant to showing maintenance. See id.; Onick, 889

F.2d at 1431. Other circuits have gone further and held that

evidence of dominion and control over or constructive possession of

a place is sufficient to support a maintenance finding. See United

States v. Basinger, 60 F.3d 1400, 1405 (9th Cir. 1995); United

States v. Howell, 31 F.3d 740, 741 (8th Cir. 1994).

We are wary of equating possession with maintenance by holding

that any time the evidence would support a finding that the

defendant was in constructive possession of a premises, the

evidence would also support a conviction under the crackhouse

statute when controlled substances are distributed from such

premises. Indeed our opinion in Roberts suggests that not just any

showing of dominion and control will suffice to support a

12
maintenance finding. We held that there was evidence that the

defendant exercised “sufficient dominion and control” over the

condominium, suggesting that dominion and control may fall short of

maintenance. Roberts, 913 F.2d at 221 (emphasis added). We

believe that the Roberts court properly qualified its holding.

Congress could have, but did not, make it an offense to “possess”

a place for the purpose of distributing controlled substances.

“Maintain” connotes a degree of continuity and duration that is not

an attribute of “possession.”7 See United States v. Clavis, 956

F.2d 1079, 1091 (11th Cir.)(listing duration and continuity as two

factors to be taken into consideration in determining the

maintenance issue), cert. denied sub nom. Edwards v. United States,

504 U.S. 990, 112 S. Ct. 2979 (1992), modified on other grounds,

977 F.2d 538 (11th Cir. 1992), cert. denied, 507 U.S. 998, 113 S.

Ct. 1619 (1993).

With this background in mind, we turn to whether there was

sufficient evidence that Wright maintained the apartment on School

Place. On one hand, the record is devoid of evidence that Wright

lived at the apartment, leased the apartment, paid rent for the

apartment, had such control over the apartment that he could lend

it to others, or that the utilities or telephone service were in

his name.

7
Compare Webster’s Ninth New Collegiate Dictionary 718
(1984) (defining to “maintain” as “to keep in an existing state:
preserve from failure or decline; to sustain against opposition or
danger: uphold and defend; to continue or persevere in: carry on,
keep up) with id. at 918 (defining “possess” as “to instate as an
owner . . . to have and hold as property).

13
 On the other hand, the evidence demonstrates that Wright

exercised some supervisory control over the apartment, shown by his

instructions to the person who retrieved the crack from the closet

and brought it to him and by the fact that Cherry, who lived in the

apartment, worked for him. Supervisory control over the premises

is one factor that this court has considered probative of

“maintaining” a place. See Roberts, 913 F.2d at 221 (noting that

the police heard the defendant giving orders to the occupants of

the condominimum). The Eleventh Circuit has also recognized that

acts of maintenance may include “supervising, protecting, [or]

supplying food to those at the site . . . .” Clavis, 956 F.2d at

1091. Similarly, the Seventh Circuit in dictum emphasized that the

statute “appears to be aimed, like the drug-kingpin statute, at

persons who occupy a supervisory, managerial, or entrepreneurial

role in a drug enterprise . . . .” United States v. Thomas, 956

F.2d 165, 166 (7th Cir. 1992)(citations omitted).

The question in this case is whether the slim evidence of

supervisory control over the apartment, in combination with the

other slender reeds upon which the government relies, is sufficient

to show that Wright “maintained” the apartment.

Along with evidence that Wright exercised a supervisory role

at the apartment, there is some evidence of the duration of

Wright’s connection with the apartment: at least two and a half

months passed between when Wright referred Officer Webster to the

apartment (calling it “our spot”) and when Wright was in the

apartment, selling crack to Officer Webster. There is also

14
evidence that Wright stored his crack in a closet at the apartment,

which is not a common area. See Clavis, 956 F.2d at 1092 (noting

that items owned by defendant convicted under Section 856(a)(1)

were found in a locked closet); United States v. Williams, 923 F.2d

1397, 1403-04 (10th Cir. 1990) (emphasizing the fact that items

connected to the defendant were found in a closet), cert. denied,

500 U.S. 925, 111 S. Ct. 2033 (1991).

This case does not involve an isolated sale of crack from a

location. Rather, all the evidence is consistent with Wright

having participated in the maintenance of a crackhouse. Wright

directed others to the crackhouse; called the location “our spot”;

told Officer Webster that Cherry, who resided in the apartment,

worked for him; and exercised dominion and control over the

apartment by directing another person during a drug transaction and

by storing his drugs in a closet in the apartment. Although any of

these facts might be insufficient in isolation, they coalesce to

support the jury’s finding here that Wright maintained 2939 School

Place for the purpose of distributing crack cocaine in violation of

Section 856(a)(1).

We emphasize that whether a defendant has “maintained” a place

is necessarily a fact-intensive issue that must be resolved on a

case-by-case basis. In doing so, we must be mindful of the

conditions under which crackhouse operations are often conducted.

Drug dealers who maintain a location for the purpose of selling

drugs may not avoid conviction under the crackhouse statute by

simply ensuring that the lease or deed for the location and the

15
utilities, if any, are not in their name. See, e.g., United

States v. Wood, 57 F.3d 913, 919 (10th Cir. 1995); Howell, 31 F.3d

at 741; see also United States v. Lancaster, 968 F.2d 1250, 1254

(D.C. Cir. 1992).

Where the evidence shows that over a period of time the

defendant can direct the activities of and the people in a place,

the jury may infer that he is involved in maintaining the place.

Accordingly, we conclude that the evidence as a whole is sufficient

to support the jury’s finding that Wright maintained 2939 School

Place for the purpose of distributing cocaine base.

C. Aiding and abetting the sale of crack cocaine near a public
school (Morgan)

The jury convicted Morgan of Count 14, which charged that

Morgan, Jackson, and Rogers aided and abetted each other in the

possession and distribution of crack near a public school on March

10, 1995. The record shows that Morgan referred Officer Webster to

Rogers at 2831/2823 Carter for the purchase of crack. Webster went

to the Carter address and was met by Ryan Jackson, whom Webster

knew from a previous sale. Webster and Jackson negotiated the

sale, Jackson got baggies of crack from Rogers, and Jackson and

Webster drove to another location to complete the sale.

Morgan appears to complain of his conviction because although

he referred Webster to Rogers, Jackson actually handled the

transaction. This argument is without merit. Aside from the fact

that Rogers was in fact involved in the transaction, evidence at

trial showed that Jackson worked for Rogers. This evidence is more

than sufficient to support the conviction.

16
 II. Variance

Morgan, Jackson, and Wright8 argue that a fatal variance

existed between the indictment, which alleged a single conspiracy,

and the proof at trial, which they claim established the existence

of two or more separate and independent conspiracies. To prevail

on a material variance claim, the appellants must prove (1) a

variance between the indictment and the proof at trial, and (2)

that the variance affected their substantial rights. United States

v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, 115 S. Ct.

2595 (1995). Whether the evidence shows one or multiple

conspiracies is a question of fact for the jury. United States v.

Guerra-Marez, 928 F.2d 665, 671 (5th Cir.)(citations omitted),

cert. denied, 502 U.S. 917, 112 S. Ct. 322 (1991). The principal

considerations in counting the number of conspiracies proven are

“(1) the existence of a common goal, (2) the nature of the scheme

and (3) overlapping of participants in the various dealings.”

United States v. Faulkner, 17 F.3d 745, 761 (5th Cir.), reh’g

denied en banc, 21 F.3d 1110, cert. denied, 513 U.S. 870, 115 S.

Ct. 193 (1994) (quoting United States v. Richerson, 833 F.2d 1147,

1153 (5th Cir. 1987)). A jury’s finding that the government proved

a single conspiracy must be affirmed unless the evidence, viewed in

the light most favorable to the government, would preclude

reasonable jurors from finding a single conspiracy beyond a

8
The government does not contest Wright’s adoption of this
issue by reference.

17
reasonable doubt. Morris, 46 F.3d at 415 (citing United States v.

DeVarona, 872 F.2d 114, 118 (5th Cir. 1989)).

This court has defined the “common goal” factor used to count

conspiracies broadly. Morris, 46 F.3d at 415. In Morris, we held

that the common goal of a single conspiracy was “to derive personal

gain from the illicit business of buying and selling cocaine.” Id.

The jury could reasonably have concluded that the common goal of

the charged conspiracy in this case was to distribute crack cocaine

in the Frazier Courts area.

Both the nature of the scheme and the overlap of participants

also support a single conspiracy in this case. A bird’s eye view

of the evidence presented at trial shows that Ammons, Stuart, and

Robinson were “key men” who supplied crack cocaine to the Frazier

Courts area. See United States v. Pena-Rodriguez, 110 F.3d 1120,

1127 (5th Cir. 1997), petition for cert. filed, No. 96-9480 (June

19, 1997); Morris, 46 F.3d at 416 (quoting United States v.

Richerson, 833 F.2d 1147, 1154 (5th Cir.1987)(internal citations

omitted)). Rogers, Wright, and Morgan acted as middle men, buying

from Ammons, Stuart, and Robinson, and selling to area residents.

Jackson worked for Rogers, who bought crack from Ammons and Stuart

at the Frank Street duplex. The evidence also showed that Morgan

referred business to Rogers. Viewed in the light most favorable to

the verdict, the efforts of each were “necessary or advantageous .

. . to the overall success of the venture . . . .” Morris, 46 F.3d

at 417. The government made a strong showing that the sellers and

18
the mid-level purchasers had direct relationships and that there

was overlap between the groups of distributors.

Jackson argues that the government proved two conspiracies:

the Ammons-Stuart-Robinson conspiracy (the “charged conspiracy”)

and a conspiracy headed by Andre Carl Rogers. Jackson also lists

members of the charged conspiracy, including Ammons, Stuart, and

Robinson, who were unaware that Jackson sold cocaine. Id. Of

course, the fact that other participants in the charged conspiracy

were unaware of Jackson’s involvement in the overarching scheme

does not preclude a finding that he was a part of the conspiracy.

Morris, 46 F.3d at 416 (“The government does not have to establish

that the sellers and purchasers knew each other or knew what each

other was doing.”). Jackson also relies on Rogers’s testimony that

his suppliers were not among those charged in the indictment and

that some of the individuals who distributed for him were not

charged. Even if Rogers had other suppliers, the record is clear

that Rogers purchased crack cocaine from Ammons and Stuart.

Further, the fact that some conspirators in Roger’s line of

distribution may have escaped indictment does not establish a

separate conspiracy.

Morgan argues that the places at which the prosecution proved

he sold crack cocaine differed from the locations at which co-

conspirators were shown to distribute. He also argues that Rogers

was a competitor, not a part of the same conspiracy. The fact that

some participants in the scheme are in competition does not

preclude a finding of a single conspiracy. See United States v.

19
Wilson, ___ F.3d ___, 1997 WL 351805, *4 (5th Cir. June 26, 1997)

(citations omitted); Morris, 46 F.3d at 416 (holding that

competition among purchasers was just a part of the “larger common

plan” to distribute drugs). As discussed in Section I.A.2 above,

the evidence was sufficient to show that Morgan was involved in the

overarching conspiracy.

Even were we to conclude that there was a variance, appellants

have failed to prove that it affected their substantial rights.

See Guerra-Marez, 928 F.2d at 672. The evidence is sufficient to

prove each appellant’s participation in at least one conspiracy,

and none has shown reversible error under joinder and severance

principles. See Pena-Rodriguez, 110 F.3d at 1128. This court has

“long held that when the indictment alleges the conspiracy count as

a single conspiracy, but the ‘government proves multiple

conspiracies and a defendant’s involvement in at least one of them,

then clearly there is no variance affecting that defendant’s

substantial rights.’” Faulkner, 17 F.3d at 762 (citations

omitted), cited in Pena-Rodriguez, 110 F.3d at 1128.

In addition, the jury received a cautionary instruction

warning against the transference of guilt, which further

safeguarded against the possibility of prejudice. See, e.g., Pena-

Rodriguez, 110 F.3d at 1128; Morris, 46 F.3d at 417 (citing Guerra-

Marez, 928 F.2d at 672); United States v. Puig-Infante, 19 F.3d

929, 936 (5th Cir.) (citations omitted), cert. denied, 513 U.S.

864, 115 S. Ct. 180 (1994). The written jury instructions in this

case cautioned jurors against finding guilt if the proof

20
established any conspiracy other than that charged in the

indictment.

In sum, we conclude that the government proved a single

conspiracy, but even were we to conclude that the government

adduced evidence of more than one conspiracy, the substantial

rights of appellants were not affected.

III. Sentencing

Defendants Wright and Morgan challenge their sentences on

several grounds. The district court’s factual determinations at

sentencing are reviewed for clear error; its legal conclusions, de

novo. United States v. Siciliano, 953 F.2d 939, 942 (5th Cir.

1992).

A. Quantity of Cocaine (Morgan)

The district court assigned Morgan a base offense level of 34,

the offense level under the guidelines for 50 to 150 grams of

crack. U.S.S.G. § 2D1.1(c)(4). Morgan challenges the quantity

range under which he was sentenced, complaining of the district

court’s failure to find a specific gram amount attributable to him.

The district court found that “even if you exclude some of it,

you’re still above the 50 level.” The better practice would be to

make a specific finding of the quantity of cocaine attributable to

a defendant. Failure to do so, however, is not reversible if a

finding within the sentencing range is not clearly erroneous. See

United States v. Castillo, 77 F.3d 1480, 1495 (5th Cir.)(holding

that the district court’s finding that “at least 1000 kilograms”

were attributable to the defendant was “clearly adequate and

21
sufficiently specific” to comply with U.S.S.G. § 1B1.3), cert.

denied, 117 S. Ct. 180 (1996); see also U.S.S.G. § 2D1.1 comment.

(n. 12)(the sentencing judge may “approximate the quantity” of the

controlled substance if no drug seizure occurred); Basinger, 60

F.3d at 1410; United States v. Chatman, 994 F.2d 1510, 1516-17

(10th Cir. 1993), cert. denied, 510 U.S. 883, 114 S. Ct. 230

(1993).

The district court’s finding that the amount of crack

attributable to Morgan was more than 50 grams was not clearly

erroneous. Stuart testified that he sold Morgan 60 grams of crack

cocaine in one transaction alone. We are not persuaded by Morgan’s

argument that the evidence associated with this amount bears

insufficient indicia of reliability to support his sentence.

B. Type of Cocaine (Morgan)

Morgan argues that the district court erred in applying the

sentencing guidelines for cocaine base (crack), as opposed to

another form of cocaine, because there was insufficient evidence

that the drug bought and sold was crack cocaine. We have reviewed

the record and the arguments of the parties and conclude that this

point lacks merit.

C. Obstruction of Justice (Morgan)

Morgan appeals the enhancement of his offense level by two

points for obstruction of justice under U.S.S.G. § 3C1.1. The

district court enhanced Morgan’s sentence under this guideline

because it found that Morgan had given perjurious testimony at

trial and that the testimony was material. We review U.S.S.G. §

22
3C1.1 enhancement findings for clear error. See United States v.

Gray, 105 F.3d 956, 971 (5th Cir.) (citations omitted), cert.

denied, 117 S. Ct. 1856 (1997). Viewing the evidence in the light

most favorable to Morgan,9 the district court did not clearly err

in finding that Morgan committed perjury with respect to material

trial testimony. Clearly, Morgan’s perjured testimony provided a

sufficient basis for imposing an obstruction of justice

enhancement. See United States v. Dunnigan, 507 U.S. 87, 113 S.

Ct. 1111, 1114-17 (1993); Gray, 105 F.3d at 971; United States v.

Storm, 36 F.3d 1289, 1295-97 (5th Cir. 1994), cert. denied, 514

U.S. 1084, 115 S. Ct. 1798 (1995); U.S.S.G. § 3C1.1 comment. (n.

3(b)).

D. Criminal History Categories (Jackson, Morgan)

Both Morgan and Jackson argue that the district court should

have departed downward because the criminal history category

assigned to them overrepresents the seriousness of their criminal

histories. See U.S.S.G. § 4A1.3.

The record reflects that the district court exercised its

discretion in refusing to adjust Morgan’s and Jackson’s criminal

history categories. The district court did not refuse to depart in

violation of law or because of a mistaken application of the

guidelines, nor did it do so out of a mistaken belief that it

lacked the power to do so. Under these circumstances, this court

lacks jurisdiction to review the district court’s refusal to depart

downward in calculating Morgan’s and Jackson’s criminal history

9
U.S.S.G. § 3C1.1.

23
categories. See United States v. Leonard, 61 F.3d 1181, 1185 (5th

Cir. 1995); United States v. DiMarco, 46 F.3d 476, 477 (5th Cir.

1995); see also United States v. Sparks, 2 F.3d 574, 589 (5th Cir.

1993), cert. denied, 510 U.S. 1080, 114 S. Ct. 899 (1994).

IV. Evidentiary Rulings
A. Shotgun

Wright and Jackson appeal the admission of Officer Webster’s

testimony that, during the course of one of the undercover drug

deals where Jackson was present, a participant held a shotgun to

Officer Webster’s head. Webster testified that Nathaniel Williams

was holding a shotgun when Webster entered the residence and that

Williams held the shotgun to Webster’s head during the transaction.

The district court also allowed Webster to identify a noise on the

undercover tape recording of the transaction as “racking” the

shotgun. We review admissibility rulings for abuse of discretion.

United States v. Clements, 73 F.3d 1330, 1334 (5th Cir. 1996).

In this case, the court held a hearing outside the presence of

the jury, concluded that the evidence was not extraneous to the

charge, and overruled Jackson’s Rule 404(b) objection. The

district court acted within its discretion in determining that the

use of the shotgun was not evidence extrinsic to the charge. The

shotgun was used in connection with a drug sale, which involved

Jackson and other charged co-conspirators who pleaded guilty before

trial. The district court’s determination that the evidence was

not extrinsic comports with the Eleventh Circuit’s analysis in

United States v. Weeks:

24
 Evidence of criminal activity other than the charged
offense is not considered extrinsic within the
proscription of Rule 404(b) of the Federal Rules of
Evidence if it is an uncharged offense which arose out of
the same transaction or series of transactions as the
charged offense, United States v. Kloock, 652 F.2d 492,
494 (5th Cir. 1981), if it was inextricably intertwined
with the evidence regarding the charged offense, United
States v. Killian, 639 F.2d 206, 211 (5th Cir. 1981),
cert. denied, 451 U.S. 1021, 101 S. Ct. 3014, 69 L.Ed. 2d
394 (1982), or if it is necessary to complete the story
of the crime of the trial, United States v. Wilson, 578
F.2d 67, 72-73 (5th Cir. 1978).

716 F.2d 830, 832 (11th Cir. 1983); see also United States v.

Asibor, 109 F.3d 1023, 1034 (5th Cir. 1997); United States v.

Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (citations omitted).

The use of the shotgun in this case arose out of the drug

conspiracy, was inextricably intertwined with the specific drug

deal, and was part of “the story of the crime.” See Weeks, 716

F.2d at 832. Under these circumstances, the district court’s

determination that this evidence was not extraneous was not an

abuse of discretion.

Jackson also argues that the district court erred in failing

to make Beechum findings on the record as required by United States

v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983). We disagree for

two reasons. First, because the district court properly determined

that the evidence was not extraneous, no Beechum findings were

required. United States v. Maceo, 947 F.2d 1191, 1199 n.3 (5th

Cir. 1991), cert. denied, 503 U.S. 949, 112 S. Ct. 1510 (1992).

Second, even if Beechum did apply, the district court was not

required to conduct an on-the-record Beechum analysis because

25
Jackson failed to request it. United States v. Fox, 69 F.3d 15, 20

(5th Cir. 1995).

Finally, although the shotgun evidence is no doubt

prejudicial, the trial court did not abuse its discretion in

concluding that any unfair prejudice did not “substantially

outweigh” its probative value as required under Rule 403.

B. Gangs

Wright assigns as error the district court’s admission of

evidence “pertaining to gangs and violence.” Because Wright did

not object to the admission of this testimony at the time of trial,

we review for plain error. United States v. Neal, 27 F.3d 1035,

1054 (5th Cir. 1994), cert. denied, 115 S. Ct. 1165 (1995).10

The only references to the term “gang” in the course of the

trial were contained in Agent Brown’s testimony that she was

assigned to the “organized crime gang squad in the Dallas Division

[of the FBI]” and that she received information about the Frazier

Courts area from the gang unit of the Dallas Police Department. The

district court did not abuse its discretion by allowing this

testimony. In any event, Wright cannot show that such reference to

10
We review for plain error even though the matter admitted
was the subject of a pretrial Rule 404(b) ruling because Wright
made no contemporaneous objection to the admission of the testimony
at the time of trial. See Clements, 73 F.3d at 1337 n.7 (citing
United States v. Graves, 5 F.3d 1546, 1551-53 (5th Cir. 1993),
cert. denied, 511 U.S. 1081, 114 S. Ct. 1829 (1994)). At the
pretrial Rule 404(b) hearing, the government introduced evidence
that Wright was affiliated with the “415 Bloods.” The district
court ruled that the government could mention gangs generally, but
that he would rule separately on any specific extrinsic criminal
act related to gangs. At trial, the government made no attempt to
prove any defendant’s affiliation with a gang or even that gang-
related activity was occurring in the area.

26
gangs prejudiced his substantial rights, much less that the

reference “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” See Johnson v. United States,

___ U.S. ___, 117 S.Ct. 1544, 1549 (1997) (internal quotation marks

and citations omitted). Accordingly, Wright has not shown plain

error.11

V. Ineffective Assistance of Counsel (Wright)

Wright claims that he received ineffective assistance of

counsel at trial. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984). In this circuit, “a claim of ineffective

assistance of counsel cannot be resolved on direct appeal when the

claim has not been raised before the district court since no

opportunity existed to develop the record on the merits of the

allegation.” United States v. Higdon, 832 F.2d 312, 314 (5th Cir.

1987) (citations omitted), cert. denied, 484 U.S. 1075, 108 S. Ct.

1051 (1988). Although Wright raised the issue of his counsel’s

effectiveness in a rudimentary form in the district court,12 this

11
Wright also complains that his presentence report states
that he was a leader in the 415 Bloods and that the gang had been
linked to violent crimes in Dallas. Other than arguing that this
“unfairly attempted to sway the reader,” he does not allege that he
was prejudiced by this reference. He would be hard-pressed to do
so given that the district court stated at Wright’s sentencing
hearing that he would not consider Wright’s gang-affiliation
“either for or against the defendant in any shape, fashion, or
form.”
12
After trial but before sentencing, Wright filed a post-
trial motion for re-appointment of counsel, in which he complained
of the representation he had received from his appointed counsel.
At a hearing on this motion and related matters, the district court
told Wright that the court was “not really going to get into it
with [him] about [his] unhappiness with [his] lawyer.” Wright’s
appointed trial counsel continued to represent him through the

27
is not one of the “rare cases” in which the record is sufficiently

developed on direct appeal that it would “allow[] us to evaluate

fairly the merits of the claim.” Hidgon, 832 F.2d at 314 (citation

omitted).

CONCLUSION

The convictions and sentences of Marcus Morgan and Ryan

Jackson are AFFIRMED. The convictions and sentences of Jarvis

Wright are AFFIRMED without prejudice to his ability to pursue an

ineffective assistance of counsel claim in a habeas corpus

proceeding.

filing of his notice of appeal.

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