United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 1, 1998 Decided November 3, 1998
No. 96-3128
United States of America,
Appellee
v.
Melvin L. Lampkin,
Appellant
Consolidated with
96-3129
Appeals from the United States District Court
for the District of Columbia
(No. 96cr00103-01)
(No. 96cr00103-02)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant, with whom A. J. Kramer, Federal
Public Defender, was on the briefs.
Richard E. Gardiner, appointed by the court, was on the
brief for appellant Troy E. Lampkin.
Kimberley S. Knowles, Assistant U.S. Attorney, argued the
cause for appellee, with whom Wilma A. Lewis, U.S. Attor-
ney, John R. Fisher, Thomas C. Black and T. Anthony
Quinn, Assistant U.S. Attorneys, were on the brief. Mary-
Patrice Brown and M. Evan Corcoran, Assistant U.S. Attor-
neys, entered appearances.
Before: Edwards, Chief Judge, Henderson and Garland,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: On March 5, 1996, pursuant to a
search warrant, police officers searched an apartment at 1962
West Virginia Avenue, N.E., in the District of Columbia. At
the time of the search, there were three adults (appellants
Melvin Lampkin and Troy Lampkin, and Thomas Davenport)
and five juveniles (Michael Thomas, Anthony Millhouse, La-
von Howard, Kellie Mitchell, and Catherine Pledger) in the
apartment. The search uncovered ziplock bags of cocaine
base on a table and hidden in a ceiling light fixture, and a
pistol hidden in a chair cushion. Subsequently, an indictment
was returned, charging both Melvin and Troy Lampkin with
possession with intent to distribute more than 5 grams of
cocaine base ("PWID"), in violation of 21 U.S.C. s 841(a)(1)
and (b)(1)(B)(iii) [Count One], and employing a minor to
commit the same drug offenses, in violation of 21 U.S.C.
s 861(a)(1) [Count Three]; Melvin Lampkin, alone, was
charged with carrying a firearm during a drug trafficking
offense [Count Two], carrying a pistol without a license
[Count Four], and possession of unregistered ammunition
[Count Five]. Following trial on these counts, a jury convict-
ed both Lampkins on Counts One and Three; however,
Melvin Lampkin was acquitted on Counts Two, Four, and
Five.
Appellants seek to overturn their convictions on a number
of grounds, only three of which raise substantial questions for
consideration by this court. Appellants claim that the trial
judge erred (i) in repeatedly instructing the jury that three
juvenile witnesses who testified against the Lampkins could
not face prosecution in federal court, (ii) in allowing the jury
to consider video-taped evidence that was never presented in
open court or subjected to cross-examination, and (iii) in
admitting a prior consistent statement of a key Government
witness. Appellants also claim that the trial judge erred in
imposing a special assessment of $100, rather than $50, for
each of appellants' convictions. The Government concedes
that we must remand the special assessment to allow the trial
court to impose the correct amount. The Government also
concedes error on the first three points, but argues that each
error is harmless.
After careful review of the record in this case, we find that
the first two errors at issue require the reversal of both
appellants' convictions on Count Three, as well as Troy
Lampkin's conviction on Count One. The errors were harm-
less, however, with respect to Melvin Lampkin's conviction on
Count One, because there was ample independent evidence
linking him to the drugs. As for the third cited error, we
agree with the Government that it was harmless error for the
District Court to admit a prior consistent statement of Kellie
Mitchell, because the statement was merely cumulative of
other evidence adduced at trial.
I. Background
A.The Arrest and Indictment
On March 5, 1996, three members of the Metropolitan
Police Department executed a search warrant in an apart-
ment at 1962 West Virginia Avenue, N.E., in the District of
Columbia. Inside, the police found eight people, 2.3 grams of
cocaine base in 16 ziplock bags on a table, 31 grams of cocaine
base in 202 ziplock bags hidden in a ceiling light fixture, and a
pistol hidden in the cushion of a chair. Of the eight people in
the apartment, three were adults--appellants Melvin and
Troy Lampkin, as well as Thomas Davenport--and five were
juveniles--Michael Thomas, Anthony Millhouse, Kellie Mitch-
ell, Lavon Howard, and Catherine Pledger. The police also
found keys to the apartment in Melvin Lampkin's jacket, as
well as Melvin Lampkin's car registration on the same table
as the 16 ziplock bags. They also found $231 in cash in Troy
Lampkin's pants pocket.
The police arrested the adults and brought the juveniles in
for questioning. That night, the police conducted video-taped
interviews of the juveniles. Upon examination, Michael
Thomas's fingerprints were found on the clip of the gun and
Lavon Howard's fingerprints were found on the light fixture.
No fingerprints from Melvin or Troy Lampkin were found on
either the gun or the drugs.
On April 2, 1996, the Lampkins were charged with PWID
and employing a minor to commit the drug offenses. Melvin
Lampkin was also charged with three gun and ammunition
possession offenses. The juveniles were not charged with
any offenses.
B.The Trial
Melvin and Troy Lampkin were tried together, in a trial
commencing on June 25, 1996. During the trial, the building
landlord testified that he had rented the searched apartment
to Melvin Lampkin, and the police officers testified as to the
items found in the apartment. The heart of the Govern-
ment's case, however, was the testimony of three of the
juveniles: Thomas (age 17), Millhouse (age 14), and Mitchell
(age 15). Thomas and Millhouse testified that they had sold
drugs for the Lampkins in the past, and that the Lampkins
kept the drugs in the light fixture. Millhouse also testified
that, on the night of the search, he had seen Melvin Lampkin
with a gun. Mitchell testified that she saw Melvin reach into
the light fixture that night and give Troy some cocaine to sell
to a customer waiting at the door. She also testified that she
saw Melvin Lampkin remove a gun from his waistband and
place it under a pillow on the couch.
The credibility of the juvenile witnesses was suspect, to say
the least. Thomas, in particular, seemed to have difficulty
understanding most of the questions asked of him, his an-
swers were often vague and unresponsive, the prosecutor led
him on a number of occasions, and his answers to most of the
central questions about the drugs and the gun changed after
his recollection was refreshed by reference to the testimony
that he had given before the grand jury. Millhouse testified
that he had been smoking marijuana on the night of the
search and that he did not have a good memory of the events
of that night. Mitchell admitted that she had been smoking
marijuana on the night of the search, that during her initial
police interview she said she did not know if Melvin Lampkin
sold drugs, and that during this interview she said it was
Thomas, not Melvin Lampkin, who had taken drugs from the
light fixture that night.
1.The Erroneous Instruction
During the cross-examination of Thomas, defense counsel
attempted to show that Thomas had a deal with the prosecu-
tor, pursuant to which he would escape prosecution in ex-
change for testifying against the Lampkins. See Trial Tran-
script ("Tr."), 6/26/96 at 209-11. In response to questions
from defense counsel, Thomas appeared to indicate that he
had been told by a prosecutor that he was not being charged
because he was testifying against the Lampkins. See id. at
210-11. However, at a bench conference during cross-
examination, the trial judge made it clear to counsel that his
line of inquiry was pointless. The court instructed counsel
that
it is only fair, and it becomes more and more fair as we
go, to make it abundantly clear to this jury that the
United States [Attorney's Office] does not have jurisdic-
tion [over the juvenile witnesses], that's why I wanted to
say it at first and that's why I wanted to say it for every
juvenile.
Id. at 218-19. Then, immediately following Thomas's testi-
mony, the court instructed the jury as follows:
Members of the Jury, you have heard the testimony of
Mr. Michael Thomas, who is a juvenile, providing testi-
mony on behalf of the Government.... You are in-
structed that it is the District of Columbia Corporation
Counsel that has the authority, the jurisdiction, to decide
whether to proceed with any charges against a juvenile.
The United States Attorney and his Assistant United
States Attorney, such as the Assistant United States
Attorney in this case, has no such authority.... A
supervisor at the District of Columbia Corporation Coun-
sel has ... indicated there will be no prosecution of Mr.
Thomas as a juvenile arising from the events of [March
5, 1996].
Tr. 6/27/96 at 77-78.
At the conclusion of Millhouse's testimony, the District
Court told the jury that the same instruction applied to
Millhouse. See Tr. 6/27/96 at 143. Defense counsel then
brought to the court's attention the fact that under 18 U.S.C.
s 5032, the U.S. Attorney's Office did in fact have jurisdiction
to prosecute the juveniles. The court acknowledged the
error, but nevertheless repeated the instruction, over defense
objection, in its final charge to the jury. See Tr. 7/2/96 at 6A-
11.
2.The Thomas Video Tape
Early in the trial, the Government offered into evidence the
video tape of the police interviews of the three juveniles made
on the night of the arrests. Defense counsel objected, claim-
ing that admission of the tape would violate the Confrontation
Clause. See Tr. 6/26/96 at 41. The trial judge admitted the
tape over counsel's objection. Subsequently, Government
counsel attempted to rehabilitate Thomas on re-direct by
playing the portion of Thomas's video-taped interview in
which he said that he retrieved drugs from the light fixture at
the request of Troy Lampkin. See Tr. 6/27/96 at 73. Over
defense counsel's objections, the District Court allowed the
Government to play a portion of the tape.
It appears that approximately three minutes of Thomas's
statement were actually played during trial, see id. at 69, an
amount that Government counsel recalls as "only a short
segment" of the total interview. Brief for Appellee at 40
n.12. Subsequently, however, in the middle of its delibera-
tions, the jury sent a note to the trial court asking for the
video tape of the police interviews and the transcript of each
of the juveniles' trial testimony. The trial court informed the
jury that the trial transcript was unavailable; but the trial
judge gave the jury the entire video tape to play in the jury
room, including the portion of the Thomas statement that was
never played in court. Government counsel conceded that it
was error for the District Court to allow the jury to hear and
consider the entire video-taped statement.
3.Mitchell's Prior Consistent Statement
On cross-examination, Mitchell was impeached with her
statement to the police that it was Michael Thomas, not
Melvin Lampkin, who had retrieved drugs from the light
fixture during the night in question. On re-direct, the Gov-
ernment elicited from Mitchell, over objection, that she had
told the grand jury that it was Melvin Lampkin who had
retrieved the drugs from the light. See Tr. 6/28/96 a.m. at 76.
The Government concedes that admission of this prior consis-
tent statement was error.
4.The Special Assessment
On July 8, 1996, the jury returned guilty verdicts against
both Lampkins for PWID and for employing a minor to
commit the drug offenses. The jury acquitted Melvin Lamp-
kin of the gun and ammunition possession charges. The
District Court imposed a special assessment of $100 for each
of appellants' convictions.
II. Analysis
A.The Erroneous Instruction
All parties agree that the District Court's repeated instruc-
tions to the jury that the United States did not have jurisdic-
tion to prosecute the juvenile witnesses was an erroneous
statement of the law. See 18 U.S.C. s 5032 (Supp. II 1996)
(establishing procedures for federal prosecution of juveniles).
Therefore, we must determine whether this conceded error
requires reversal. To do so, we look to the proceedings as a
whole and reverse only if the error "undermine[s] confidence
in the conviction when viewed in light of all that took place."
United States v. Yunis, 924 F.2d 1086, 1096 (D.C. Cir. 1991).
If the error "had substantial and injurious effect or influence
in determining the jury's verdict," it cannot be viewed as
harmless. Kotteakos v. United States, 328 U.S. 750, 776
(1946).
The trial judge gave the erroneous instruction three times:
once following Thomas's testimony, once when the judge told
the jury that the instruction applied to Millhouse's testimony,
and once in the court's final charge (after the trial judge had
been advised by counsel that the instruction was legally in
error). The prejudice from the error is arguably mitigated
somewhat by the fact that the United States Attorney rarely
exercises its jurisdiction over juveniles. Nonetheless, there
was no good reason for the District Court to offer any
instruction on this matter, much less sua sponte. It goes
without saying that the trial judge certainly would not have
advised the jury on the frequency with which the United
States makes deals with cooperating witnesses, for such an
instruction would not be in the Government's interest and it
would offer the jury little, if any, relevant information. So we
are not here pondering whether the erroneous instruction
that was given was close to something that the trial judge
might reasonably have given to the jury. Rather, we are
considering an instruction that was clearly wrong with re-
spect to a matter that should not have been before the jury.
The most important point to be made here is that the trial
judge's erroneous instruction robbed the appellants of their
primary defense. The defendants wanted to show that the
principal witnesses against them testified only to escape
prosecution themselves, and thus that they lied with good
motive to do so. The defendants were improperly foreclosed
from pursuing this line of defense. In United States v.
Salerno, 937 F.2d 797, 809-10 (2d Cir. 1991), the trial judge
refused to allow the defendant to cross-examine key Govern-
ment witnesses on the issue of bias, and then refused to allow
him to raise the issue when presenting his own case. The
court held:
This was not a harmless error. By instructing Ianniello
to wait to make the bias inquiry, and then refusing to
allow it, the district court effectively prevented Ianniello
from presenting a defense. This was an error of consti-
tutional magnitude. The Supreme Court has long held
that criminal defendants have, at a minimum, "the right
to put before a jury evidence that might influence the
determination of guilt." Pennsylvania v. Ritchie, 480
U.S. 39, 56 (1987). See also Chambers v. Mississippi, 410
U.S. 284 (1973)....
Id. at 810, rev'd on other grounds, 505 U.S. 317 (1992).1 We
think that the holding in Salerno is precisely on point here: if
a trial court commits error and thereby prevents a defendant
from presenting a viable defense, that error is not harmless.
The Government emphasizes that Michael Thomas ap-
peared to believe that he had been offered a deal in exchange
for his testimony. As long as Thomas had the subjective
belief that he had made a deal to cooperate, and he was
vigorously cross-examined on the subject, the Government
argues, the court's erroneous instruction did nothing to bol-
ster his credibility and was therefore harmless error. We
disagree.
The erroneous instruction followed immediately after
Thomas's confused testimony, then the instruction was re-
peated twice more. Indeed, the trial court carried out its
stated desire to make it "abundantly clear" to the jury that
the United States could not prosecute Thomas or any of the
juvenile witnesses. Furthermore, even if Thomas thought he
had made a deal with the Government (and his testimony is
very confusing on this point), Millhouse and Mitchell testified
__________
1 Ianniello's convictions, along with those of his seven co-
defendants, were also reversed on an entirely unrelated ground.
The Supreme Court subsequently reversed the Second Circuit on
this unrelated ground. See United States v. Salerno, 505 U.S. 317
(1992). The Second Circuit's holding as to Ianniello's inability to
present a defense, however, remained intact; Ianniello was subse-
quently severed from the case. See United States v. Salerno, 974
F.2d 231, 232 (2d Cir. 1992).
to no such thing. It is true that defense counsel decided not
to cross-examine Millhouse on agreements to cooperate and
only briefly cross-examined Mitchell on the subject. But the
decision to forego this line of cross-examination was certainly
reasonable, given that the District Court had made it abso-
lutely clear that it was going to impress upon the jury the
"fact" that the United States did not have jurisdiction to
prosecute the juveniles. In short, the jurors were given the
clear view that the juveniles could not be prosecuted by the
Government. The result was that the defendants were effec-
tively foreclosed from attempting to show that the juveniles
had a strong motive to testify on behalf of the Government
and against the Lampkins.
Under these circumstances, there is a real possibility that
the instruction had a substantial effect on the jury's verdict
with respect to the Lampkins' convictions for unlawfully
employing a minor. See Kotteakos, 328 U.S. at 765. The
evidence against the Lampkins on this charge was far from
overwhelming, given that the credibility of the juveniles was
very much in doubt throughout the trial. The jurors appar-
ently did not believe Millhouse's and Mitchell's testimony
regarding Melvin Lampkin's possession of the gun, for they
acquitted him of the gun charges. Thomas's testimony was
even more suspect. At one point during his testimony, the
trial court even asked him if he had been high on marijuana
during his testimony the previous day. See Tr. 6/27/96 at 13.
Absent the juveniles' testimony--tainted by conceded error--
that they sold drugs for the Lampkins, there was literally no
evidence to convict appellants of this offense.
We need not decide whether this error without more
warrants reversal. Rather, we find that, when the erroneous
instruction is considered along with the trial court's error in
allowing the jury to consider video-taped evidence that was
never presented in open court or subjected to cross-
examination, there is no doubt that reversible error was
committed. Accordingly, both Lampkins' convictions for un-
lawfully employing a minor must be reversed. See United
States v. Smart, 98 F.3d 1379, 1391 (D.C. Cir. 1996) ("[I]f the
evidence presented at trial is ambiguous, even a relatively
minor error requires reversal.").
Troy Lampkin's PWID conviction must be reversed for the
same reason. The only evidence, other than the juveniles'
testimony, offered against him on this count was the fact that
he was in the apartment at the time of the search and $231 in
cash was found on his person. This evidence would not have
been sufficient to convict Troy Lampkin on Count One. See,
e.g., United States v. Foster, 783 F.2d 1087, 1089 (D.C. Cir.
1986) ("Numerous decisions of this Circuit have made clear
that mere proximity or accessibility to contraband will not
support a conclusion that an individual had knowing dominion
and control over it."); United States v. Pardo, 636 F.2d 535,
549 (D.C. Cir. 1980) (same).
We decline, however, to reverse Melvin Lampkin's PWID
conviction. Apart from the juveniles' testimony, there was
ample circumstantial evidence of Melvin's dominion and con-
trol over the apartment and the drugs inside: the testimony
of the landlord that Melvin Lampkin had rented the apart-
ment and lived there; the discovery of the apartment keys in
his jacket and of his car registration on the table; and the
presence of the ziplock bags both in plain view on the table
and in the light fixture. Given this independent evidence, we
are satisfied that the erroneous instruction did not have a
substantial effect on the jury's verdict against Melvin Lamp-
kin on Count One.
B.The Thomas Video Tape
Throughout the trial, defense counsel strongly objected to
the admission of the video tape of the police interviews of the
juveniles, on both Confrontation Clause and hearsay grounds.
See Tr. 6/26/96 at 41; 6/27/96 at 68, 74. Reasonably con-
strued, these objections encompass the original admission of
the tape, the playing of small segments of the tape for the
jury during the course of trial, and the release of the entire
tape to the jury for its review and consideration during jury
deliberations. Indeed, during oral argument before this
court, Government counsel conceded that it was error for the
District Court to allow the jury access to the entire video-
taped police statement of Michael Thomas, when only a brief
portion of the statement was subjected to cross-examination
in court. We agree. The only question here is whether the
error was harmless.
"To protect jury deliberations from improper influence, we
ordinarily restrict the jury's access only to exhibits that have
been accepted into evidence and 'consideration by the jury of
documents not in evidence is error.' " United States v.
Holton, 116 F.3d 1536, 1542 (D.C. Cir. 1997) (citation omit-
ted); see also Turner v. Louisiana, 379 U.S. 466, 472-73
(1965) ("[T]rial by jury in a criminal case necessarily implies
at the very least that the 'evidence developed' against a
defendant shall come from the witness stand in a public
courtroom where there is full judicial protection of the defen-
dant's right of confrontation, of cross-examination, and of
counsel."); United States v. Cunningham, 145 F.3d 1385,
1397 (D.C. Cir. 1998) (reversing convictions where jury was
inadvertently provided with unredacted 911 tapes implicating
appellant). The precise content of the unconfronted portion
of Thomas's statement is not clear from the record; it is
clear, however, that the disputed amount of tape that was
made available to the jury was not an insignificant portion of
the tape, because the Government acknowledges that only a
minor segment of Thomas's taped statement was played for
the jury in open court. It is also clear that the jury had a
great interest in reviewing the testimony of the juveniles--
during its deliberations, the jury asked for all of the juveniles'
testimony, but received only the video tape.
The burden is on the Government to establish that the
unconfronted portions of the tape given to the jury were not
prejudicial, i.e., that the error was harmless. See Smart, 98
F.3d at 1390; Kotteakos, 328 U.S. at 760-61. In the seminal
Turner case, two key Government witnesses acted as deputy
sheriffs in charge of the jury throughout the trial. There was
no showing that the deputies discussed the case with the jury
members, but the Court noted that the deputies' testimony at
trial was central to the Government's case, and their credibili-
ty was "assailed" on cross-examination. Turner, 379 U.S. at
473. The Court reversed the convictions, explaining that
"[t]he requirement that a jury's verdict 'must be based upon
the evidence developed at the trial' goes to the fundamental
integrity of all that is embraced in the constitutional concept
of trial by jury." Id. at 472 (citation omitted). Thus, under
Turner, when evidence that directly pertains to the case has
not been subjected to cross-examination but is nevertheless
submitted to the jury, reversal is required unless the Govern-
ment can show that the evidence did not prejudice the
defendant.
With respect to Troy Lampkin's PWID conviction, the
Government offers nothing to suggest that the conceded error
was other than prejudicial. No one doubts that the uncon-
fronted portions of the video-taped statement were directly
relevant to the case. We know from the portion that was
played in court that Thomas's statement strongly implicated
Troy Lampkin. Furthermore, the Government conceded at
oral argument that Thomas had not yet been informed that
he was not going to be prosecuted at the time when he was
interviewed. Finally, there seems little doubt that the jury
reviewed the video tape, for the jury asked for all of the
juveniles' testimony (but received only the video tape to
review). On these facts, we cannot assume that the Govern-
ment has met its burden. Rather, we must suppose that an
error of this magnitude--jury exposure to unconfronted
statements from a principal prosecution witness--is prejudi-
cial unless the Government shows otherwise. The Govern-
ment has shown nothing to support its claim of harmless
error.
We very recently reiterated that in a harmless error inqui-
ry, "[t]he question is 'whether the guilty verdict actually
rendered in this trial was surely unattributable to the error' "
and not whether the appellant would have been convicted but
for the error. United States v. Maddox, No. 97-3082, slip op.
at 7 (D.C. Cir. Oct. 9, 1998) (quoting Sullivan v. Louisiana,
508 U.S. 275, 279 (1993)). "If the judge is in 'grave doubt'
about the harmlessness of the error, he or she must reverse
the conviction." Smart, 98 F.3d at 1390 (quoting O'Neal v.
McAninch, 513 U.S. 432, 436 (1995)). Particularly with re-
spect to a witness like Thomas, who was effectively im-
peached on cross-examination, we cannot say that under
these circumstances it was harmless error for the jury to
have unlimited access to Thomas's video-taped statement
about which he was never cross-examined. And, as noted
above, when this error is considered along with the erroneous
instruction, there is no doubt that reversible error was com-
mitted. Accordingly, we reverse Troy Lampkin's PWID con-
viction.
There is no basis, however, for us to reverse Melvin
Lampkin's PWID conviction. As discussed above, there was
ample independent evidence linking Melvin to the drugs such
that we can say with fair assurance that the error here did
not affect the jury's verdict against him.
C.Mitchell's Prior Consistent Statement
Mitchell testified on direct examination that she had seen
Melvin Lampkin take drugs out of the light fixture on the
night of the search. She was impeached on cross-
examination with her statement to the police that it was
Thomas, not Melvin Lampkin, who had taken the drugs out of
the fixture that night. The District Court then allowed the
Government to elicit on re-direct Mitchell's grand jury testi-
mony that she saw Melvin take drugs out of the light fixture
on the night of the search and give them to Troy. Tr. 6/28/96
a.m. at 76. The Government concedes that this testimony
was inadmissible hearsay that improperly bolstered Mitchell's
direct testimony.
We find that this error was harmless in light of the strong
circumstantial case against Melvin discussed above, the trial
testimony of Thomas that the light fixture was a "stash spot"
and that he had seen Melvin remove drugs from it, and
Millhouse's testimony that the Lampkins kept drugs in the
fixture and that he had seen Melvin "serve" drugs from the
apartment on the day of the search. In other words, we are
confident that Mitchell's prior consistent statement, which
was merely cumulative of other evidence adduced at trial, did
not affect the jury's verdict. See Kotteakos, 328 U.S. at 776.
D.The Special Assessment
Pursuant to 18 U.S.C. s 3013, appellants should have been
charged a special assessment of $50 for each of their convic-
tions. However, the District Court imposed a special assess-
ment of $100 for each conviction, apparently pursuant to a
recent amendment to s 3013 increasing the mandatory spe-
cial assessment for felony convictions. See Mandatory Vic-
tims Restitution Act of 1996, Pub. L. No. 104-132, tit. II,
s 210, 110 Stat. 1214, 1240 (1996). The Government concedes
that the amendment was passed subsequent to the date of the
offense and that a remand is therefore necessary in order to
impose the appropriate special assessment of $50 per convic-
tion. See United States v. Grace, 778 F.2d 818, 823 (D.C. Cir.
1985). Because we affirm Melvin Lampkin's PWID convic-
tion, we remand for the purpose of adjusting the special
assessment on this conviction to accord with the pre-
amendment version of 18 U.S.C. s 3013.
III. Conclusion
For the reasons explained above, we reverse Troy Lamp-
kin's convictions on Count One and Count Three. We also
reverse Melvin Lampkin's conviction on Count Three. We
affirm Melvin Lampkin's conviction on Count One, but re-
mand to the sentencing court for imposition of the appropri-
ate special assessment. The reversed counts are remanded
for new trial.
So ordered.