United States v. Boone

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

1-29-2002

USA v. Boone
Precedential or Non-Precedential:

Docket 99-5439

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Filed January 29, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-5439/5695/5894

UNITED STATES OF AMERICA

v.

LARRY BOONE,

Appellant No.: 99-5439

UNITED STATES OF AMERICA

v.

THOMAS WESTON, aka Rasul

Thomas Weston,
Appellant No.: 99-5695

UNITED STATES OF AMERICA

Appellant No.: 99-5894

v.

THOMAS WESTON, aka Rasul

On Appeal and Cross-Appeal from the Judgment of
Conviction and Sentence of the United States District
Court for the District of New Jersey
(Crim. No. 99-cr-00358)
District Judge: Hon. Garrett E. Brown, Jr.

Argued: September 15, 2000

Before: ROTH, McKEE and RENDELL, Circuit Judge s
(Opinion Filed: January 29, 2002)

DAVID E. SCHAFER, ESQ. (Argued)
Assistant Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, New Jersey 08609
Attorney for appellant Boone
in No. 99-5439.

DAVID L. RHOADS, ESQ. (Argued)
311 White Horse Avenue, Suite A
Trenton, New Jersey 08610
Attorney for Appellant
Weston in No. 99-5695 and
cross-appellee in No. 99-5894

ROBERT J. CLEARY, ESQ.
United States Attorney
NORMAN GROSS, ESQ. (Argued)
Assistant United States Attorney
United States Attorney's Office
Camden Federal Building and
United States Courthouse
P. O. Box 2098
Camden, New Jersey 08101
Attorneys for appellee in
Nos. 99-5439/5695 and
cross-appellant in No. 99-5894

OPINION OF THE COURT

McKEE, Circuit Judge.

A jury convicted Thomas Weston and Larry Boone of
conspiring to distribute and possess with intent to
distribute cocaine and cocaine base ("crack"). Both have
appealed alleging numerous trial and sentencing errors.
The government has also filed a cross-appeal challenging
Weston's sentence based upon the district court's
calculation of Weston's Base Offense Level.

2
For the reasons that follow, we will affirm the convictions
of both defendants on all counts of the indictment, and we
will also affirm Boone's sentence. However, for reasons set
forth below, we will vacate Weston's sentence and remand
for re-sentencing consistent with this opinion.

I. FACTS

Thomas Weston manufactured crack cocaine and enlisted
numerous persons to distribute large quantities of crack
and powder cocaine in Asbury Park, New Jersey between
1995 and 1998. The evidence at trial established that
Weston purchased 3 to 5 kilograms of cocaine powder from
a wholesale distributer in New York City. He converted
cocaine powder into crack cocaine, delivered cocaine to a
coterie of street level dealers for distribution in Asbury
Park, and personally "cooked" at least 200 grams of cocaine
powder into crack cocaine.

Weston solicited Stewart Mills, a hot dog vendor in
Asbury Park, to sell crack cocaine for him. However, Mills
was a reformed drug addict who was strongly opposed to
drug-dealing. Unbeknownst to Weston, Mills told local law
enforcement officials about Weston's drug activities and
agreed to broker controlled drug deals between Weston and
undercover agents posing as drug buyers.

Weston told Mills that crack should be sold at $900 an
ounce, and that Mills would have to sell a minimum of 4
ounces. Weston also gave Mills code words and numbers
that Mills was to use when communicating with Weston
about drug transactions. Weston eventually agreed to sell
four ounces of crack to a buyer whom Mills introduced as
a drug user named "Malik." Malik was actually Gregory
Hilton, an undercover agent of the Drug Enforcement
Agency. Mills and Weston agreed that the sale would occur
on July 11, 1997, in Howell, New Jersey, at a flea market
known as the "Collingswood Auction."

Thereafter, Mills paged Weston from a public telephone
as instructed by the DEA agents. He entered the number
"3600" which represented the price (i.e. $3,600) that Agent
Hilton was willing to pay for 4 ounces of crack as Weston
had requested. Weston called Mills back and arranged a

3
meeting at Weston's home in Asbury Park, and Mills and
Weston then met to finalize the arrangements.

Weston next contacted Curtis Farris (a/k/a "C-Allah")
and offered him $500 to deliver the drugs to the buyer at
the Collingswood Auction. Farris agreed and told Weston
that he would have someone else make the actual delivery.
Farris selected Larry Boone (a/k/a "God Supreme"). Boone
had sold cocaine for Farris before, and Farris knew that
Boone and Mills were friendly.

Farris offered Boone $100 and an eighth of an ounce of
cocaine to deliver the package of cocaine to Collingswood
Auction and collect the sales price. Boone agreed.
Meanwhile, Weston partially reneged on his agreement with
Mills to provide four ounces of crack cocaine, and
unilaterally substituted 111 grams (approximately four
ounces) of cocaine powder for delivery to Farris. On the
afternoon of July 11, 1997, Farris drove Boone to the
Collingswood Auction in a black Jeep. En route, Farris gave
Boone a brown paper bag. That bag contained a smaller
plastic bag containing 111 grams of powder cocaine that
Weston had supplied.

Law enforcement officials who had set up surveillance at
the Collingswood Auction saw Weston and two other people
arrive 2:45 p.m. Farris and Boone arrived about ten
minutes later. Boone approached Mills and said he was
"there to do the deal." Mills introduced Farris and Boone to
Agent Hilton, posing as "Malik." Hilton accompanied Boone
to Farris' car as directed. Once inside the car, Boone took
a clear plastic bag from his jacket. The bag contained the
distinctive white cocaine powder. Agent Hilton never saw
the brown paper bag.

Although Weston had set a price of $3,600, unbeknownst
to Farris, Boone demanded $3,700 from Agent Hilton.
Hilton briefly complained about the increase but ultimately
paid it as he did not want to compromise the investigation
by walking away from the transaction. Hilton agreed and
Boone handed him the plastic bag of cocaine which Agent
Hilton opened and examined in Boone's presence inside the
Jeep. After inspecting the cocaine in front of Boone, Hilton
produced $3,700 in cash which he counted in Boone's

4
presence and handed to Boone so that Boone could recount
it. After Hilton left the Jeep, Boone surreptitiously skimmed
$100 from the $3,700 payment, and drove off followed by
Weston who had driven another car to the flea market to
observe the transaction.1

About a week later, Boone came to Mills' home. Boone
announced that he "was back rolling," which meant that he
was selling cocaine again. He informed Mills that he (Boone)
had a "connection" and could get Mills all the"weight"
(large quantities of cocaine) that Mills wanted. During that
meeting, Boone gave Mills his "business card."

Several weeks later, again acting at the request of DEA,
Mills brokered another sale of four ounces of cocaine from
Weston to Agent Hilton posing as "Malik." During a
surreptitiously recorded conversation on July 22, 1997,
Mills told Weston that Malik wanted to buy four ounces of
crack for $3,600 during the following week. Weston again
gave Farris powder cocaine, rather than crack. However,
Farris used Herbert Jones to make the delivery to Hilton
because he could not find Boone. Jones made the delivery
on August 1, 1997. This time the transfer occurred in a
restaurant that Mills owned.

Mills again met Weston on October 4, 1997. The meeting
occurred inside a bar, and during the meeting Mills (who
was equipped with a hidden recorder) asked Weston why he
had delivered powder cocaine on July 11 and August 1
rather than the crack that Malik requested. Weston initially
claimed that he no longer "cooked up crack." However,
Weston then directed Mills out of the bar so they could
speak without being overheard. Using slang terms for
manufacturing crack ("cooking," "laying out," "bringing
back"), Weston told Mills that he (Weston) would convert
the four ounces of cocaine that he most recently sold to
Malik into four and one-half ounces of crack. Weston also
told Mills that he could provide Mills with additional crack
cocaine if he wanted it. Later, Weston told Mills to pick up
_________________________________________________________________

1. Surveillance officers captured the entire transaction on videotape, and
Hilton wore a hidden audio transmitter that allowed his conversation to
be recorded by the agents conducting surveillance.

5
some powder cocaine, and bring it to Weston's home so
that Weston could "cook it up."

II. DISTRICT COURT PROCEEDINGS

Weston, Boone and Jones were arrested by warrant and
complaint on June 3, 1998. Farris was arrested on
September 11, 1998. On October 27, 1998, a federal grand
jury issued a superseding indictment charging Weston,
Boone, Farris and Jones with conspiring to distribute, and
possessing with intent to distribute, more than 5 grams of
cocaine base (crack cocaine) and more than 200 grams of
cocaine, contrary to 21 U.S.C. S 841(a)(1), in violation of 21
U.S.C. S 846. The government also filed an enhanced
penalty information against Weston, pursuant to 21 U.S.C.
SS 841(b)(1)(B) and 851(a)(1). The requested enhancement
was based upon Weston's 1992 sentence of four years
incarceration in Maryland for possession of 39 grams of
crack cocaine with intent to distribute.

Farris entered into a plea agreement whereby he agreed
to cooperate with the government and plead guilty to the
superseding indictment. Jones also pleaded guilty. Boone
and Weston proceeded to trial where the jury convicted
them of the charged conspiracy.

Prior to sentencing, the Probation Office calculated
Weston's Adjusted and Total Offense Level at 40. 2 In light of
Weston's five criminal history points, and Criminal History
Category of III, Weston's Guidelines Range was 360 months
to life imprisonment. Following three days of sentencing
hearings, the district court reduced the Total Offense Level
from 40 to 32.3 The court refused to consider any of the
crack cocaine that Weston cooked as "relevant conduct"
_________________________________________________________________

2. The Probation Office used the 1998 Sentencing Guidelines Manual for
Weston and Boone.

3. It is not clear from the briefs or the transcript of the proceedings
why
the district court reduced the Total Offense Level to 32. The only
relevance that it may have for our purposes is the Apprendi claim that
we discuss below. However, as we discuss below, inasmuch as Weston
is exposed to a life sentence because of a prior drug felony conviction,
Apprendi does not apply.

6
under the Guidelines. This reduced the Guideline Range
calculated by the pre-sentence report by more than half.
The district court also reduced Weston's Criminal History
Category to II, resulting in a Guidelines Range of 135 to
168 months. The district court then imposed a sentence of
168 months and a term of supervised release of 8 years.

Because Boone had been convicted of two previous drug-
trafficking felonies in New Jersey state courts, as well as
aggravated assault with a deadly weapon, the district court
found that Boone was a "career offender" under the
Sentencing Guidelines. The court assigned Boone a Base
Offense Level of 32, and a Criminal History Category of VI.
The court declined Boone's request for a three level
downward adjustment for "acceptance of responsibility"
pursuant to U.S.S.G. S 3E1.1, but the district court agreed
that the resulting Guidelines Range of 210 to 262 months
was too high. Therefore, the court granted Boone a three
level downward departure, and imposed a custodial
sentence of 151 months -- the bottom of the resulting
sentencing range -- followed by a four-year term of
supervised release.

Weston and Boone have filed appeals, at Nos. 99-5695
and 99-5439 respectively. In Weston's case, the government
has filed a cross-appeal (No. 99-5894), based upon the
district court's failure to attribute any crack cocaine to
Weston in calculating his applicable Offense Level. We will
separately discuss each defendant's appeal and the
government's cross-appeal.

III. WESTON'S APPEAL

Weston's counsel has raised three claims of trial error. In
addition, we have permitted Weston to file a pro se brief, in
which he has raised three claims of sentencing error. Each
assignment of error is discussed separately.

1. The District Court Erred by Allowing Testimony
Regarding Threats Against a Government Witness.

In his counseled brief, Weston argues that the district
court improperly allowed the government to cross-examine

7
two defense witnesses regarding Weston's efforts to coerce
Farris into providing false exculpatory testimony for
Weston.

After Weston was indicted, he tried to get Farris to sign
an affidavit in which Farris was to swear that he did not
know Weston. When Farris returned to prison following his
guilty plea, he found a letter in his cell.4 The letter
threatened harm to Farris and his family if Farris testified
against Weston, and it instructed Farris to recopy a portion
of the letter and sign it in his own handwriting. The portion
of the letter that was to be recopied stated that Weston had
not committed the crimes he was charged with. Farris
believed that the letter came from Weston. Farris did copy
a portion of the letter as requested, but he added a
sentence in which he asked the reader to notify law
enforcement if Farris was the victim of foul play. Farris
then threw away the original letter.

Farris later spoke to Robert Perry, an inmate who worked
in the prison library and was helping Weston prepare for
trial. Perry told Farris that he should hope for a long prison
sentence, because otherwise "somebody is going to kill
you." Farris responded by telling Perry that he would
withdraw his guilty plea and refuse to testify against
Weston. Farris hoped that Perry would relay that message
to Weston.

Shortly thereafter, Farris was summoned to the prison
library where he encountered Weston, Boone and Perry.
Weston had Farris' letter and directed Farris to rewrite the
letter omitting the reference to foul play. About one week
later, Farris was again summoned to the prison library
where Boone demanded that Farris write a similar letter
_________________________________________________________________

4. According to the government, after Farris received the letter he asked
another inmate named Gavin if he had written the letter. Gavin denied
having written the letter but warned Farris that he had better not
cooperate with the government because Farris' life and Farris' family's
lives will be in danger. Government's Br. at 15 n.5. Presumably, Gavin
is the same person Weston calls Garrin. According to Weston, Garrin is
the only person who Farris actually identified as threatening him, but
who the government never directly associated with Weston. Weston's
Counseled Br. at 7.

8
exonerating him (Boone). Farris was transferred to another
prison after telling law enforcement authorities about the
threats. According to the government, Farris was terrified
by these threats, and did not want to testify.

At trial, Weston denied ever threatening Farris, or ever
seeing the letter that purported to exonerate Weston.
Weston also testified that when he saw Farris in prison,
Farris was surprised that Weston had been charged.
According to Weston, Farris had suggested that Jones had
implicated Weston, and Farris volunteered to exonerate
Weston.

To further contradict Farris' testimony about Weston's
intimidation, Weston presented several inmates who had
been incarcerated with Weston and/or Farris. Johnny
Davenport testified on direct examination that at the time
of trial he had been an inmate in the same prison as
Weston. He had known Weston for 18 years and Farris for
25 years. Davenport claimed that Farris admitted to him
that the government wanted Farris to "lie on[Weston]."
Davenport further testified that Farris told him that Weston
was not involved in the drug conspiracy.

On cross-examination, Davenport testified, without
objection, that he was six feet tall, and weighed about 225
pounds. When the prosecutor asked Davenport whether he
made use of this time in jail by "keeping in good shape,"
Weston's counsel objected to "personal observations of the
prosecutor." The objection was overruled. The prosecutor
then inquired, without objection, whether Davenport lifted
weights in jail. Davenport claimed that he did not. Then,
again without objection, the prosecutor elicited testimony
that Davenport had been convicted of drug-trafficking
offenses and assault.

Weston also called Nard Henderson as a defense witness.
Henderson testified on direct examination that he spoke to
Farris while the two were in a holding cell at the Federal
Courthouse in Trenton, New Jersey. According to
Henderson, Farris told him Weston "had nothing to do with
it." Henderson also claimed that Farris "was going to write
a letter, clearing [Weston]." On cross-examination,
Henderson testified without objection that he was six feet,

9
two and one-half inches tall, weighed 280 pounds, that he
had an extensive criminal record that included drug-
trafficking and resisting arrest, and that he was a"career
offender."

Weston argues that the cross-examination of these
witnesses was an improper attempt to "convey an image in
the minds of the jurors that Farris was continually living
under the threat of violent physical harm rendered by
Weston's prison henchmen." Weston's Counseled Br. at 6-7.
In Weston's view, "the harm visited upon [him], despite the
incriminat[ing] evidence adduced below, mandates reversal
by the Honorable Court." Id. at 7.

At the outset, we note that Weston's only objection to this
line of cross-examination was that it exceeded the scope of
direct, and that the questions were based upon improper
observations by the prosecutor. Consequently, our scope of
review as to these issues is whether the district court
committed plain error in allowing the testimony. United
States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000). "[W]e
may reverse only if we find error . . . so serious as to
undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice." United States v.
Turcks, 41 F.3d 893, 897 (3d Cir. 1994)(citation omitted).

A plain error is clear or obvious. In most cases, an
error will be deemed to have affected substantial rights
where it is prejudicial. Prejudicial error, affecting
substantial rights, must have affected the outcome of
the District Court proceedings. The inquiry concerning
prejudice on plain error review is similar to our inquiry
into harmless error with the important difference that
the defendant, rather than the government, bears the
burden of persuasion in a plain error analysis.

Id. at 898 (citation and internal quotations omitted). Here
Weston never even attempts to show how the disputed
testimony constitutes plain error. He merely claims that he
was harmed by the "improper" cross-examination. We do
not believe this testimony amounts to plain error, and he
has not met his burden of showing that it was plain error.5
_________________________________________________________________

5. We do not think the court erred in allowing this inquiry. However,
even if we assume that the district court did err, the error clearly did
not
affect the outcome of the trial because Farris, Perry, and Gavin (or
"Garrin") also testified about Weston's threats.

10
2. The District Court Erred by Allowing
the Government to Cross-Examine Witnesses About
Weston's Prior Drug-Trafficking Activities.

Weston's counsel also argues that the district court
improperly allowed the government to cross-examine two
witnesses about Weston's prior, uncharged drug-trafficking.
Weston called Rayfield James as a character witness, and
asked him about Weston's reputation in the community for
truthfulness and honesty. James replied that Weston is
"straightforward," and "a man of his word." On cross-
examination, James testified, without objection, that "with
me, . . . [Weston had] a reputation for being law-abiding,"
and truthful. James also testified on cross-examination
that he was unaware that Weston had previously been
convicted of dealing crack cocaine, but that, even if he had
been aware, it would not have changed his opinion of
Weston's character.

However, Weston objected when the government asked
James if he was aware that the nightclub Weston owned in
Asbury Park had been the subject of a search warrant
executed by narcotics agents. The objection was overruled
and the district court immediately instructed the jury that
the question was permissible "not for the truth of any such
assertion but rather as it may affect the opinion of the
witness." James then testified that he was not aware of any
search warrant and that even if he had been, it would not
have affected his opinion of Weston.

Weston's counsel argues that allowing questions about
Weston's prior conviction and the search of his night club
amounted to "fatal error." According to counsel, "[t]he
inescapable conclusion is that the government knew of
other narcotic activity on [Weston's] part that was not part
of [his] trial" and "a juror could only be left with the
thought that Weston was a continuing target for narcotics
agents." Weston's Counseled Br. at 8. We disagree.6
_________________________________________________________________

6. We review for plain error those claims that were not preserved in the
district court, United States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000),
and for abuse of discretion for those claims that were preserved. United
States v. Davis, 183 F.3d 231, 256 (3d Cir. 1999).

11
The Federal Rules of Evidence provide that:

In all cases in which evidence of character or a trait of
character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the
form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.

Fed. R. Evid. 405(a)(italics added). Therefore, the
government could inquire about James's awareness of
Weston's prior conviction and the execution of the search
warrant at Weston's night club once Weston put his
character in issue. See United States v. Scholl , 166 F.3d
964, 974-75 (9th Cir. 1999)(approving cross-examination of
opinion character witness by reference to defendant's
specific acts of misconduct). The district court has broad
discretion regarding the cross-examination of character
witnesses, and the court did not abuse that discretion in
allowing the government to challenge the character
testimony that Weston offered. United States v. Furst, 886
F.2d 558, 578 (3d Cir. 1989).

Furthermore, inasmuch as counsel did not object to
inquiry into Weston's prior drug-trafficking conviction
during James' cross-examination, Weston again has the
burden of establishing plain error.

The testimony regarding the search of Weston's night
club did not amount to plain error. For one thing, Mills
testified, without objection, that he had purchased drugs
there. Accordingly, we fail to see how inquiring into James'
knowledge of a search of that night club could have
prejudiced Weston; especially given the district court's
prompt limiting instruction. See United States v. Curtis, 644
F.2d 263, 269 (3d Cir. 1981)(no reversible error for
improper cross-examination of a reputation witness which
elicited only information that had already been introduced
into evidence).

Similarly, Duval Moore testified on direct examination
that he and Farris were lifelong friends, and cell mates in
jail. Moore told the jury that Farris told him that Farris had
a deal that included falsely implicating Weston in the
charged drug offenses. On cross-examination, Moore
continued to claim that Farris told him that the FBI

12
instructed Farris to lie about Weston. Moore also claimed
that Farris gave him a letter in which Farris stated that he
wanted to withdraw his guilty plea because he knew he
would have to lie for the government. However, according to
Moore, law enforcement officials refused to allow Farris to
withdraw his plea.

The government attacked Moore's credibility by eliciting
(without objection) that Moore had several convictions for
cocaine trafficking and violent crimes. Moore refused to
identify his suppliers during that line of questioning, and
the government responded by asking: "isn't it a fact that
you distributed Thomas Weston's cocaine and you're
covering for him here?" Moore denied that assertion and
Weston's counsel stated he objected "unless the prosecutor
has some proof of that." At a sidebar, the government then
proffered that Farris had informed investigators that he
once delivered a package of cocaine from Weston to Moore
for subsequent distribution by Moore. Weston's counsel
responded with a motion for a mistrial, "just for the record,"
which the court denied.

Weston now argues that testimony was "highly
inflammatory, . . . meant to prejudice, and [constitutes]
reversible error." However, at trial Weston did not object to
the inquiry because of its inflammatory or prejudicial
nature. Rather, counsel argued that the question was not
permissible unless the government had proof of the
assertion. Accordingly, we once again review for plain error.
Given the context of the cross-examination, we conclude
that the district court did not commit any error in allowing
the inquiry -- let alone, plain error. Evidence that Moore
and Weston had been drug dealing partners was relevant to
Moore's possible bias in favor of Weston. See United States
v. Abel, 469 U.S. 45, 52 (1984)(evidence regarding joint
membership of witness and defendant in criminal
organization was properly admitted to establish possible
bias of witness in favor of defendant). In addition, the jury
was properly instructed that answers, not questions,
constitute evidence, and Moore denied selling drugs for
Weston.7
_________________________________________________________________

7. In explaining why this evidence did not violate the strictures of Rule
404(b), we again emphasize the danger inherent in this kind of evidence.

13
Moreover, there was significant evidence of Weston's
involvement in the drug trade. Mills testified that he saw
Weston distribute drugs, that he purchased drugs from
Weston, and that Weston solicited him to sell drugs. Farris
testified that he purchased drugs with Weston. Weston
admitted that he had previously manufactured crack
cocaine, and Weston was captured on audiotape discussing
the charged conspiracy with Mills. Thus, the district court
did not err in allowing the limited inquiry into whether
Moore once sold drugs for Weston to establish the
relationship between the two. See United States v. Godinez,
114 F.3d 583, 588 (6th Cir. 1997)(no plain error for
improper question on cross-examination of defense witness
about whether defendant was involved in drug-dealing,
where cooperating co-conspirators had previously testified
extensively that defendant was the leader of a drug-
trafficking organization).

3. The District Court Erred by Refusing
to Strike All References to Crack Cocaine.

At the close of the government's case, Weston moved to
strike "any illusions to crack cocaine" from the jury's
consideration. He argued that the government's evidence
proved that Weston actually sold Agent Hilton cocaine
powder, not crack cocaine. However, the district court
denied Weston's motion. Here, Weston's counsel argues
that "injecting the specter of crack evokes the ire of any
jury," and is "so inflammatory that the mere
unsubstantiated allegation of involvement may be enough
to convict." Weston's Counseled Br. at 10. He therefore
asserts that the district court committed reversible error in
denying his motion.

As recited earlier, the superseding indictment charged
that Weston, Farris, Boone and Jones conspired to
distribute and to possess with intent to distribute more
_________________________________________________________________

See United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992)
("Although the government will hardly admit it, the reasons proffered to
admit prior bad act evidence . . . is often mixed between an urge to show
some other consequential fact as well as to impugn the defendant's
character.").

14
than 5 grams of crack cocaine and more than 200 grams of
cocaine. Although the substance that Weston actually
delivered was cocaine powder, more than sufficient evidence
was introduced at trial to support the conviction for
conspiring to manufacture and deliver crack cocaine. The
government produced testimony that Weston had, on two
occasions, agreed to supply crack cocaine to agent Hilton,
and Weston offered to personally convert the powder to
crack when Mills (the go-between) reminded Weston that
Hilton wanted crack.

At trial, Weston denied furnishing the cocaine that was
delivered to Hilton. However, the evidence certainly
supported the jury's conclusion that Weston was
responsible for that delivery. Weston's argument is really
bottomed upon an implicit assertion that he cannot be
convicted of conspiring to distribute crack without evidence
that he actually delivered that substance as opposed to
powder cocaine. However, one can certainly conspire to
deliver and distribute crack without the actual distribution
or delivery if the charge has otherwise been proven beyond
a reasonable doubt. See United States v. DeSimone, 119
F.3d 217, 223 (2d Cir. 1997). Consequently, the district
court properly refused counsel's motion to strike"any
illusions to crack cocaine" from the jury's consideration.8
_________________________________________________________________

8. The legal basis for counsel's motion is not clear. In the district
court,
he relied upon Fed. R. Crim. P. 29. However, we do not believe that rule
gives the district court the authority to strike evidence from the jury's
consideration. Rather, it authorizes the district court to "order the
entry
of judgment of acquittal of one or more of the offenses charged in the
indictment . . . after the evidence on either side is closed if the
evidence
is insufficient to sustain a conviction for such offense." Fed. R. Crim.
P.
29. On appeal, counsel does not cite to any specific authority. Rather, he
characterizes his motion as one "to strike crack cocaine from the
indictment." Weston's Counseled Br. at 10. However, Weston never
mentioned the indictment in his motion to strike in the district court and
he never mentioned Fed. R. Crim. P. 7(d), which governs requests to
strike allegations from an indictment. In any event, we have ignored the
procedural intricacies and reached the merits of the argument.

15
4. The PSR Erroneously Calculated the Amount of
Drugs Attributable to Weston.

In his pro se brief challenging his sentence, Weston
argues that the district court erred at sentencing by
attributing 5 kilograms of cocaine powder to him that he
purchased in New York City.9 In Weston's view, only the
220 grams of cocaine powder that he caused to be delivered
to Agent Hilton during the two controlled buys identified in
the indictment can be attributed to him under the
Sentencing Guidelines.

However, a sentence in a criminal conspiracy is based
upon all relevant conduct and not merely offense conduct.
See United States v. Rivera-Maldonado, 194 F.3d 224, 228
(7th Cir.) (Since defendant was convicted of conspiring to
distribute controlled substances, she is responsible for all
"drugs [she] personally handled or anticipated handling,
and, under the relevant conduct rubric, for drugs involved
in additional acts that were reasonably foreseeable by
[her] and were committed in furtherance of the
conspiracy.")(citation omitted). The evidence here easily
established that Weston's relevant conduct included the
purchase and sale of approximately 5 kilograms of cocaine
powder.

Weston and Farris first met in the autumn of 1995 inside
Farris' telephone pager store in Asbury Park. Weston had
four pagers set to a single telephone number which he used
in dispatching his confederates to make cocaine sales. After
Weston told Farris that he was unhappy with his cocaine
suppliers, Farris drove Weston to New York City to meet a
man referred to as "Poppy", a Dominican from whom Farris
had been buying cocaine in lots of 200 to 700 grams. 10

Farris introduced Weston to Poppy as a "steady", and
described Weston as a high volume cocaine buyer. Weston
_________________________________________________________________

9. "When . . . construction of the Sentencing Guidelines is required on
appeal, the standard of review is plenary." United States v. Greene, 212
F.3d 758, 760 (3d Cir. 2000). Review of the district court's findings of
facts with regard to the sentence is clear error. United States v. Yeaman,
194 F.3d 442, 456 (3d Cir. 1999).

10. Farris diluted the cocaine and then sold the diluted product.

16
and Farris each gave Poppy $4,000 to purchase a total of
400 grams of cocaine. Thereafter, on five or six occasions,
Weston gave Farris cash in the average amount of $6,000
to purchase additional cocaine from Poppy. Farris charged
Weston 10 grams of cocaine (worth about $300) in return
for purchasing $6,000 to $7,000 of cocaine from Poppy. On
three or four other occasions, Weston bought cocaine from
Poppy for Farris in amounts of up to $8,000, and charged
Farris the same ten gram fee for that "service." On six or
seven other occasions, Weston went to Poppy and made
unspecified purchases of his own.

In early 1996, Weston and Farris went together to New
York City, where each purchased between $6,000 and
$8,000 of cocaine from Poppy. The evidence established
that Weston and Poppy appeared to be well acquainted with
each other. Weston last used Farris to purchase cocaine
from Poppy in late 1997 or early 1998. Farris' testimony
established that Weston's bulk cocaine purchases from
Poppy to Weston and/or Weston and Farris amounted to
between 4.8 and 5.7 kilograms of cocaine. The Sentencing
Guidelines provide that "[t]ypes and quantities of drugs not
specified in the count of conviction may be considered in
determining the offense level. See S 1B1.3(a)(2)(Relevant
Conduct)." U.S.S.G. S 2D1.1, Application Note 12.

Relevant Conduct for a drug trafficking conviction
includes not only all controlled substances involved"during
the commission of the offense of conviction," but also those
substances involved as "part of the same course of conduct
or common scheme or plan as the offense of conviction."
U.S.S.G. S 1B1.1(a)(2). Consequently, all of Weston's drug-
trafficking that was part of the same course of conduct or
common scheme must be included in the drug quantity,
regardless of whether a particular transaction resulted in a
conviction. See U.S.S.G. S 1B1.3, Application Note 3
(application of S 1B1.3(a)(2) "does not require the defendant,
in fact, to have been convicted of multiple counts.").

Weston's multiple drug-trafficking offenses, including the
offense of conviction, and his purchases from Poppy, were
part of a "common scheme or plan," because they were
"substantially connected to each other by at least one
common factor, such as . . . common accomplices, . .. [or

17
a] common purpose." U.S.S.G. S 1B1.3, Application Note
9(A). Weston and Farris were clearly accomplices in the
offense of conviction and in their joint purchases of cocaine
powder from Poppy. Farris introduced Weston to Poppy,
identified Weston as a reliable bulk purchaser of cocaine,
purchased cocaine from Poppy for Weston, and gave
Weston money to purchase cocaine from Poppy. Farris also
arranged for Boone and Jones to deliver Weston's cocaine
in the charged conspiracy. Therefore, the district court
properly held Weston accountable for all the cocaine that
he purchased from Poppy; either alone or jointly with
Farris.

The purchases from Poppy and the offense of conviction
also "qualifi[ed] as part of the same course of conduct
[because] they [were] sufficiently related or connected to
each other as to warrant the conclusion that they were part
of [an] . . . ongoing series of offenses." U.S.S.G. S 1B1.3,
Application Note 9(B). The conduct all occurred within the
small geographic area in or near Asbury Park, involved
cocaine that Weston sold through intermediaries, and it
involved the same co-conspirators, i.e., Weston and Farris.

Accordingly, we find no merit in Weston's claim that the
5 kilograms of cocaine purchased in New York should not
be attributed to him under the Sentencing Guidelines.

5. The District Court Erred by Crediting Farris'
Testimony on the Volume of Drugs Weston
Distributed.

In his pro se brief, Weston relies upon United States v.
Miele, 989 F.2d 659 (3d Cir. 1993), in arguing that the
district court committed clear error by crediting Farris'
testimony regarding the volume of cocaine that he and
Weston purchased from Poppy. Weston claims that Farris'
testimony was internally inconsistent.

In Miele, the district court's estimate of drug quantity
rested upon the unsworn hearsay statement of an
informant. That informant later contradicted that estimate
in sworn testimony he gave during the trial of Miele's co-
defendants. We found that the "vast disparity between [the
informant's] estimate in the PSI and the significantly lower

18
estimates he provided at the co-defendants' trial cast [ ]
doubt on the reliability of the PSI's estimate." Id. at 664.
Since the district court never explained why it accepted the
informant's higher estimate in calculating the drug
quantity, we remanded for resentencing. Id.

Here, however, the district court based the volume of
cocaine on Farris' sworn trial testimony, and the court
concluded that the testimony was reliable. The testimony
remained unshaken after vigorous cross-examination.
Moreover, the "vast disparity" in estimates of drug quantity
that we found so troubling in Miele is absent here. Farris'
testimony was neither speculative nor contradictory.
Weston argues that Farris' testimony was contradictory
because Farris first testified on direct that he and Weston
first went to New York to buy cocaine from Poppy in 1995,
but then, on cross-examination, testified that the first trip
was in 1996. Although Farris did initially testify that the
first trip was in 1995, he immediately corrected himself and
explained that it was in 1996. Moreover, even if he had not
done so, the resulting discrepancy would not have been
analogous to the discrepancies in Miele. Slight memory
lapses hardly compel a sentencing court to completely
reject testimony about drug quantity. This is particularly
true where, as here, it was immediately corrected, and
involves an issue that is not at all relevant to the substance
of the testimony about drug quantity. See United States v.
Huddleston, 194 F.3d 214, 224 (1st Cir. 1999)(rejecting
argument that district court, in calculating the drug
amount, should not have relied on testimony of an
informant whose "testimony regarding dates and times was
fuzzy," because "such credibility calls are grist for the trial
court's mill."). Given Farris' familiarity with drug
transactions, his estimate of volume was appropriately
considered by the district court. It is "not unreasonable . . .
to believe that the testimony of a man experienced in drug
deals was sufficient to establish an appropriate drug
quantity." Id.

Weston also alleges that Farris' testimony should not be
credited because of an inconsistency regarding the
wholesale price of cocaine. Farris said that he paid $20 a
gram for cocaine that he purchased from Poppy in New

19
York in bulk. He also said that he and Weston paid Poppy
$4,000 each for "close to half a key [kilogram]." Finally,
Farris testified that he and Weston would charge each other
$300 to pick up cocaine from Poppy, and ten grams of
cocaine (i.e., $30 a gram) were accepted in payment.

However, as the government points out, Farris' accounts
are easily reconciled. At $20 a gram when bought in bulk,
400 grams, costing $8,000, ($4,000 from Weston and
$4,000 from Farris) is relatively "close to half a key," i.e.,
500 grams. Farris testimony that smaller quantities (i.e. 10
grams) cost more (i.e. $30 a gram) than bulk purchases
simply reflects the "economies of scale" that apparently
operated in this illegal market.

Finally, Weston complains that Farris' testimony should
not be credited because Farris did not give a dollar amount
for each of the quantities of cocaine that either he or
Weston purchased from Poppy. Therefore, argues Weston,
the district court's estimate of the total volume of drugs
was clearly erroneous. We disagree. Farris recited particular
dollar amounts for several of the purchases, estimated the
average amount of money spent during other transactions,
and estimated the total number of transactions. This is
sufficient to support the district court's estimate of the total
amount of cocaine that Weston and Farris bought from
Poppy. See United States v. Grandados, 202 F.3d 1025,
1029 (8th Cir. 2000)(not clear error for district court to
estimate unknown quantities of drugs involved in certain
transactions by reference to known quantities involved in
other, similar transactions).

6. The District Court Erred by Enhancing Weston's
Sentence for Obstruction of Justice.

Section 3C1.1 of the Sentencing Guidelines provides for
a two level enhancement if a defendant "willfully obstructed
or impeded, or attempted to obstruct or impede, the
administration of justice." Examples of obstruction include:
"threatening, intimidating, or otherwise unlawfully
influencing . . . a witness, or attempting to do so;"
"suborning, or attempting to suborn perjury"; and "other
conduct prohibited by the obstruction of justice provisions

20
under Title 18, United States Code." U.S.S.G.S 3C1.1,
Application Note 4(a).

In the Presentence Report, the Probation Office found
that Weston obstructed justice and recommended a two
level enhancement under U.S.S.G. S 3C1.l. This was based
upon the letter that Weston attempted to coerce Farris into
signing. PSR P 38. Weston objected, claiming that Farris'
account of the circumstances surrounding the purported
letter were not credible. However, the district court
observed Farris' testimony and concluded otherwise. The
court concluded "this is one of the most clear and
convincing episodes of obstruction of justice that I have
seen." The court found that it even rose to a level that
exceeded the degree of obstruction encompassed within the
"heartland" of S 3C1. It would have been difficult to
conclude otherwise.

In his pro se brief, Weston challenges Farris' credibility
by pointing to Farris' cross-examination testimony about a
gold cadillac Weston purportedly owned. However, Weston's
ownership of a gold Cadillac has absolutely nothing to do
with his conviction. The district concluded that Farris
testified credibly about Weston's obstruction activity, and
we afford that finding deference. United States v. Igbonwa,
120 F.3d 437, 440 (3d Cir. 1997). Given the credible
testimony that Weston directly and indirectly attempted to
coerce Farris into signing a copy of the aforementioned
exculpatory letter, the district court did not err in
concluding that a two level enchantment for obstruction of
justice was warranted.

IV. THE GOVERNMENT'S CROSS-APPEAL
IN WESTON'S CASE

The government argues that the district court erred in
reducing Weston's Offense Level and Guidelines Range by
ignoring credible evidence that he manufactured and
distributed at least 200 grams of crack cocaine. The
government claims that Weston's Offense Level should be
increased at least to the level applicable to the 200 grams
of crack cocaine that Weston manufactured on a single
occasion.

21
The government relies upon the crack that Weston
personally manufactured from the powder he and Farris
purchased from Poppy in New York City. Earlier, we noted
that Weston and Farris bought cocaine powder in New York
City from Poppy for distribution in Asbury Park. Weston
told Farris that crack cocaine sold faster on the street than
cocaine powder. Weston also told Farris that he (Weston)
personally manufactured crack from cocaine powder and
could produce 140 grams of crack from every 100 grams of
cocaine powder used. After one of Farris' customers
complained about some cocaine he had purchased from
Farris, Farris went to Weston to ask if Weston could
convert cocaine powder into crack. When Farris
encountered Weston, Weston was in the middle of
preparing a batch of crack. Farris testified that he saw
"maybe a couple of hundred grams" of powder cocaine on
a plate, and some baking soda. In Farris' presence, Weston
placed the mixture of cocaine powder and baking soda into
a pot of boiling water and held the pot over the stove. After
the water boiled off, the hard, off-white crack cocaine
remained as a residue in the pot. Farris was very familiar
with the appearance of crack having ingested it in the past.

On another occasion, while Weston was selling Farris
cocaine powder on the street, Weston dropped a clear
plastic bag containing 7 to 10 grams of crack cocaine on
the ground.

Weston also repeatedly solicited Mills to sell crack
cocaine for him. He told Mills that Mills could multiply his
daily income from hot dog sales (about $150 a day) by ten
or twenty times if he sold crack cocaine for Weston. Weston
said that a street-level dealer for his drug-trafficking
organization could earn at least $1,500 and as much as
$3,000 a day in commissions from the sales of crack
cocaine.

Weston also told Mills that Weston could "lay out" or
cook powder cocaine in order to transform it into"rock
cocaine," i.e., crack. Weston said he could convert an ounce
of powder cocaine into an ounce and a half of crack. On
one occasion, Weston showed Mills some crack cocaine and
told Mills, "this is the game you need to get into to make a
lot more money."

22
Mills sold hot dogs from a pushcart in front of a night
club called the "Mishypoo." The club was frequented by
numerous crack dealers, including those working for
Weston. The dealers would sell crack directly outside the
night club, in plain view of Mills. When the crack dealers
went inside the night club, they would occasionally ask
Mills to come into the bar and tell them when Weston
arrived so they could get their inventory from him. Mills
testified that Weston drove to the club two to three times a
week. When he arrived, he would summon the dealers to
his car. After a few minutes they would leave with packages
of crack cocaine to sell.

In addition, Mills later brokered the two aforementioned
crack deals between Weston and Agent Hilton. During his
direct testimony, Weston admitted to previously
manufacturing crack, and being convicted for offenses
involving crack in Maryland several years earlier. He
testified that it was common to refer to the manufacture of
crack using terms such as: "cook" cocaine,"lay it out," and
"bring it back." He explained that the process requires
boiling cocaine powder, baking soda and water together and
that if a large amount of baking soda was used, the amount
of crack produced would exceed the amount of cocaine
powder used. That is consistent with Mills' and Farris'
testimony about the crack Weston manufactured.

The PSR stated that the trial evidence established that
Weston (personally or through Farris) obtained a minimum
of 5 kilograms of powder cocaine from Poppy, the New York
City supplier. PSR P 31. According to the PSR, a
preponderance of evidence established that Weston
converted most of the 5 kilograms of cocaine powder into
crack. Id. The gram weight of that crack was at least equal
to the gram weight of the powder cocaine. Id. Accordingly,
the PSR recommended that Weston be held accountable for
at least 1.5 kilograms of cocaine base. Id. The PSR thus
applied a Base Offense level of 38 under U.S.S.G.
S 2D1.1(c)(1).11 PSR PP 42-51.
_________________________________________________________________

11. The Drug Quantity Table requires its highest Offense Level of 38 if
the defendant is responsible for "1.5 KG or more of `cocaine base.' "
U.S.S.G. S 2D1.1(c)(1).

23
Weston objected to that calculation, and claimed that he
should only be held accountable for the 220 grams of
powder cocaine that was delivered to Agent Hilton. At the
first of three sentencing hearings, Farris testified that,
based on his extensive experience as a seller of cocaine
powder, he could accurately estimate the weight of a batch
of cocaine powder from a visual inspection. After argument
by the parties, the district court adopted the PSR's
calculation that Weston was responsible for at least 1.5
kilograms of crack cocaine (and 5 kilograms of cocaine) and
was subject to a Total and Adjusted Offense Level of 40.
The hearing was then continued to another date to consider
another issue.

At the second sentencing hearing, Weston challenged the
trial testimony that he was an extensive crack dealer.
However, the district court rejected Weston's challenge
stating:

I presided over the trial and also over the [first]
sentencing hearing [at which Farris testified]. . . and I
was able to make determinations as to credibility. .. .
It seems to me that there's no reason to revisit my
prior ruling contrary to the defendant's position
[regarding the applicable drug type and amount].
Neither Mills nor Farris can be found incredible.
Rather, they -- I found them to be quite credible as to
the defendant's position himself that he was aware of
and knew how to prepare crack cocaine . . . . My prior
ruling will stand.

Even though Weston was properly held responsible for at
least 1.5 kilograms of crack cocaine (and therefore subject
to an Adjusted Offense Level of 40 and a Guidelines Range
of 325 to 405 months), Weston challenged the Adjusted
Offense Level and Guidelines Range by continuing his
attack on Farris' credibility. However, the district court
correctly pointed out that, even without any of the crack
that Weston manufactured outside of Farris' presence,
Farris saw Weston prepare approximately 200 grams of
crack on one occasion alone.12 Therefore, based only upon
_________________________________________________________________

12. As recited earlier, Farris testified during the trial that he
personally
observed Weston convert a batch of "maybe a couple of hundred grams"
of cocaine powder into crack.

24
those 200 grams, Weston's base offense level would be 34,
pursuant to U.S.S.G. S 2D1.1(c)(3), i.e.,"At least 150
G[rams] but less than 500 G[rams] of Cocaine Base."13 The
district court then adjourned the sentencing hearing to the
next day in order to consider additional documents that
Weston had submitted.

At the third sentencing hearing, the district court
repeated that it "remained convinced of [Farris'] credibility."
It also noted that the evidence established that Farris saw
Weston manufacturing "a fairly substantial quantity" of
crack on one occasion. The court noted that the evidence
showed that Weston was asked to manufacture crack
cocaine on a number of occasions, and that Weston talked
about crack to Farris and Mills. Nonetheless, the district
court concluded that the evidence failed to establish the
amount of crack cocaine attributable to Weston with
sufficient precision. The court explained:

[t]he danger is that although [Weston] may be a
substantial crack dealer, we don't know how much
crack he was actually providing, and we want to be
careful not to go from a reasonable extrapolation into
the possibility of conjecture, especially where the
guidelines are so severe.

After reiterating that Farris testified truthfully about
Weston's drug-trafficking and that the government had
proven that Weston was a "substantial drug dealer," the
district court decided that it would give Weston the"benefit
of the doubt." Therefore, based on Farris' testimony about
the volume of cocaine powder he and Weston purchased in
New York City from Poppy, the court assigned between 3 to
5 kilograms of powder cocaine to Weston. That attribution
rested on a finding supported "by clear and convincing
evidence," and not merely by a preponderance of the
evidence. It resulted in a base offense level of 30. U.S.S.G.
S 2D1.1(c)(5). However, the district court continued to have
concerns about the amount of crack cocaine involved. The
court noted:
_________________________________________________________________

13. The Guidelines Drug Quantity Table states that " `Cocaine base,' for
purposes of this guideline, means `crack.' " U.S.S.G. S 2D1.1(c)(1), Note
(D).

25
 As far as cocaine base, we know that [Weston] was in
possession of some crack cocaine. In the testimony of
Farris we don't have a calculation of the precise
amount. Was it, as the government speculates, about
200 grams? Was it less? You can certainly safely say
that it was some amount. I think that's encompassed
in level 30 as well as far as the defendant's activities as
a crack cocaine dealer.

The government responded by reminding the district
court that Farris watched Weston convert about 200 grams
of cocaine powder into a like amount of crack on a single
occasion. Therefore, argued the government, assuming a
one-to-one ratio, Farris' estimate of 200 grams of crack was
50 grams (or 33%) more than the amount required for
application of a Base Offense Level of 34 under U.S.S.G.
S 2D1.1(c)(3), i.e., at least 150 grams but less than 500
grams of crack. The district court noted that the
government's position was "persuasive and reasonable."
Nevertheless, the court "prefer[red] to base [its] ruling upon
the clear amount of powder cocaine which is here rather
than the extrapolation of the crack cocaine." The court then
opined: "as I say, I may well be wrong. I don't know. I may
well be too lenient, but we'll see whether people feel I'm too
lenient when the time comes. I don't intend to be lenient."
Finally, the district court restated its position that it was
basing its decision on drug quantities involved only on the
basis of the cocaine powder and not crack cocaine:

The government makes a very strong argument that we
should consider that there was 200 grams of cocaine
base when he was cooking it, and therefore, it should
be level 34. I say that is a reasonable position. I prefer
to base my ruling on the powdered cocaine level here,
but I do consider that, and I do consider [Weston's]
crack cocaine activities -- including that testimony
from Farris as to the substantial amounts of cocaine
and the testimony of Mills concerning crack cocaine
and [Weston's] own statements about the ability to
crack -- to cook crack cocaine.

Not unexpectedly, the government argues that Weston's
sentence must be vacated and the matter remanded so that
the district court can hold Weston responsible for at least

26
the 200 grams of crack which Farris estimated he saw
Weston manufacture.14 Therefore, the government argues
that Weston's Base Offense Level should be 34. U.S.S.G.
S 2D1.1(c)(3) ("At least 150 G but less than 500 G of
Cocaine Base.").

We applaud the district court's caution and candor.
However, under U.S.S.G. S 2D1.1, it is clear that the Base
Offense Level for a drug-trafficking offense is a function of
the quantity of the drugs involved in the offense, see United
States v. Paulino, 996 F.2d 1541, 1543 (3d Cir. 1991), and
the Guidelines Application Notes require that "the total
quantity" of drugs involved in the count of conviction and
all relevant conduct "shall be aggregated to determine the
scale of the offense." U.S.S.G. S 2D1.1, Application Note 12
(emphasis added). The Application Notes further requires
that "[w]here there are multiple transactions or multiple
drug types, the quantities of drugs are to be added" using
the drug equivalency tables. Id. Application Notes 6 and 10
("In each case, convert each of the drugs to its marijuana
equivalent, add the quantities, and look up the total in the
Drug Quantity Table to obtain the combined offense level.").
Similarly, the Guidelines Commentary provides that where
"there is no drug seizure or the amount seized does not
reflect the scale of the offense, the sentencing judge shall
approximate the quantity of the controlled substance."
U.S.S.G. S 2D1.1, Application Note 12 (emphasis added).
Consequently, the district court must "determine the
amount and kind of controlled substance for which[the]
defendant should be held accountable -- and then .. .
impose a sentence that varies depending on the amount
and kind." Edwards v. United States, 523 U.S. 511, 513-14
(1998). We agree with the district court's concern that
"recognition of the need to estimate . . . is not a license to
calculate drug amounts by guesswork." United States v.
Paulino, 996 F.2d at 1545. "Instead, the sentencing court
must carefully scrutinize the government's proof to ensure
_________________________________________________________________

14. By focusing on the crack cocaine Farris saw Weston manufacture on
one occasion, we assume that the government has conceded that the
evidence concerning Weston's manufacturing and/or distribution of any
other crack cocaine is too imprecise to enable the sentencing court to
properly calculate drug amounts, other than by sheer speculation.

27
that its estimates are supported by a preponderance of the
evidence." Id.

However, the district court's drug quantity calculation
here cannot stand. The district court never doubted Farris'
credibility. Evidence at the last sentencing hearing caused
the district court to expressly note that "one time [Farris]
saw [Weston] cooking up a quantity of which was not
measured but which he saw and looked like a fairly
substantial quantity." Yet, the district court was concerned
because Farris, though credible, was unable to state"the
precise amount" of crack that he saw Weston manufacture
on that one occasion.

As noted above, Farris' trial testimony established that he
saw Weston preparing crack cocaine from "maybe a couple
of hundred grams" of powder cocaine and some baking
soda. Weston placed the mixture of cocaine powder and
baking soda into a pot of boiling water and held the pot
over a stove. There is no doubt that Farris was sufficiently
familiar with crack to be able to properly identify the
residue that Weston produced from the "couple hundred
grams" of powder on that one occasion. Moreover, Farris
testified at the first sentencing hearing that his experience
as a cocaine dealer allowed him to accurately estimate the
weight of a batch of cocaine powder based only upon a
visual inspection.

The government relies upon Farris' estimate of a couple
hundred grams of powder on this one occasion, and the
credible testimony that he could accurately estimate the
weight of a batch of cocaine powder. Weston stated that he
could produce at least an equivalent amount of crack from
a like amount of powder. Thus, argues the government,
Farris' testimony is sufficient to establish that Weston
manufactured at least 200 grams of crack.

The district court explained its reluctance to factor those
200 grams of crack into Weston's sentence as follows: "In
the testimony of Farris we don't have a calculation of the
precise amount. Was it, as the government speculates,
about 200 grams? Was it less?" Yet, the district court was
convinced that Weston "was in possession of some crack
cocaine," and appeared to be convinced that Weston "may

28
be a substantial crack dealer." Finding itself in a quandary,
the district court apparently sought middle ground by
finding that Weston was responsible for the powder cocaine
and for "some amount" of crack, but found that the crack
was "encompassed in level 30 as well as far as the
defendant's activities as a crack cocaine dealer."

However, that conclusion was erroneous. Since the
district court found that Weston was responsible for"some
amount" of crack cocaine as well as powder, it was required
to convert each controlled substance into a volume of
marijuana, pursuant to the Guidelines' "Drug Equivalency
Tables," and then select the Offense Level that applied to
the aggregated quantity of marijuana. U.S.S.G. S 2D1.1,
Application Notes 6 and 10; see United States v. Brown, 36
F.3d 655, 663 (7th Cir. 1994). The district court was
therefore required to consider all of the controlled
substances, of whatever type, that Weston was responsible
for. Its failure to aggregate the drug types and quantities
requires us to vacate Weston's sentence and remand for
resentencing.

The district court's conclusion that the crack was
encompassed in the Base Offense Level of 30 is erroneous
because it is tantamount to holding that Weston was not
responsible for any crack whatsoever. A Base Offense Level
of 30 would be proper if the district court had found that
Weston was responsible only for 3 to 5 kilograms of cocaine
powder. U.S.S.G. S 2D1.1(c)(5)("At least 3.5 KG but less
than 5 KG of Cocaine."). However, once the district found
Weston responsible for any amount of crack cocaine, it had
to apply a Base Offense Level that would reflect that
additional quantity of that controlled substance.

For example, if we assume that Weston was responsible
for 5 kilograms of cocaine powder, that amount of cocaine
powder would place him in Base Offense Level 30. Under
the Guideline's drug equivalency formula of 200 grams of
marijuana per gram of cocaine, the 5 kilograms of cocaine
would represent 1,000 kilograms of marijuana. U.S.S.G.
S 2D1.1, Application Note 10, Drug Equivalent Tables. One
thousand kilograms of marijuana is the ceiling for Base
Offense Level 30. Consequently, any additional marijuana
equivalents would require a higher base offense level.

29
Therefore, if the district court found that Weston was
responsible for 5 kilograms of cocaine powder and any
measurable amount of crack cocaine -- which is equivalent
to 20 kilograms of marijuana per gram -- it would have had
to conclude that Weston was responsible for more than
1,000 kilograms of marijuana and it should therefore have
applied a Base Offense Level above 30.

Moreover, even if we assume that Weston was responsible
only for the lowest amount of cocaine powder covered by
Level 30 (i.e., 3 kilograms), that quantity translates into a
marijuana equivalent of 700 kilograms. Thus, any amount
of crack above 15 grams (the equivalent of 300 grams of
marijuana) would place Weston above the ceiling for level
30 and require a higher level. The evidence here certainly
establishes that Weston was responsible for more than 15
grams of crack. Farris not only testified that he saw Weston
transform "maybe a couple of hundred grams" of cocaine
powder into crack, but also testified about another occasion
when he was buying cocaine powder from Weston on the
street. During that encounter, Weston dropped a clear
plastic bag containing 7 to 10 grams of crack on the
ground. Thus, Weston was clearly responsible for more
than 15 grams of crack.

We agree that it would be highly problematic to attempt
to attribute all of the crack that was mentioned to Weston
for Guidelines purposes. That level of precision is not
supported by the generalized estimates on this record.
However, we conclude that the court erred in not at least
attributing the 200 grams that Farris saw Weston
manufacture. Given the totality of the evidence here, it is
beyond debate that Weston manufactured and/or
distributed, at least that much. We will therefore vacate
Weston's sentence and remand for the district court to
make an appropriate determination of Weston's Base
Offense Level in light of our discussion.15, 16
_________________________________________________________________

15. We take no position on the government's claim that on remand the
district court should resentence Weston using a Base Offense Level of
34. The district court can best make that determination in the first
instance.

16. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme
Court held that "[o]ther than the fact of a prior conviction, any fact
that

30
V. BOONE'S APPEAL

Boone makes six arguments in his appeal. We consider
each separately.

1. The District Court Erred by Admitting Evidence of
Boone's Prior Drug-Trafficking.

Boone's defense at trial was that even though he
accepted $100 dollars to deliver a bag that happened to
_________________________________________________________________

increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Apprendi was not raised as an issue by Weston and was only
briefly alluded to at oral argument. However, in an over-abundance of
caution, we do think that a short discussion of Apprendi is warranted.

The superseding indictment charged Weston, Boone, Farris and Jones
with conspiring to distribute and possess with intent to distribute more
than 5 grams of cocaine base (crack) and more than 200 grams of
cocaine contrary to 21 U.S.C. S 841(a)(1) in violation of 21 U.S.C. S 846.
As noted above, the government filed an enhanced penalty information
against Weston, pursuant to 21 U.S.C. SS 841(b)(1)(B) and 851(a)(1). That
information referenced a 1992 state felony conviction for possession of
crack cocaine with intent to distribute, and Weston does not now
challenge that enhancement. As a consequence of his conviction, Weston
faces a possible statutory maximum penalty of life imprisonment. See 21
U.S.C. S 841(b)(1)(B) ("If any person commits such a violation [of S
841(a)]
after a prior conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment which may not be
less than 10 years and not more than life imprisonment. . . .").

We recently applied Apprendi, and reiterated the proposition that the
limitations of Apprendi do not apply unless the quantity calculation
increases the statutory maximum the defendant is exposed to. If it does,
the calculation must be submitted to the jury and established beyond a
reasonable doubt. United States v. Vazquez, 271 F.3d 93, 98 (3d Cir.
2001). Here, however, the district court's drug calculation on remand
cannot possibly increase the statutory maximum. That maximum is
already set at life because of Weston's prior drug conviction. See United
States v. Cepero, 224 F.3d 256, 2676 n. 5 (3d Cir. 2000) (en banc)
(Apprendi does not apply where application of Sentencing Guidelines
does not implicate a fact that would increase the penalty beyond the
statutory maximum). See also United States v. Williams, 235 F.3d 858,
862-863 (3d Cir. 2000)(Apprendi does not apply to a situation where the
district court decides a fact that increases a defendant's sentence under
the Guidelines, but the sentence imposed does not exceed the statutory
maximum).

31
contain cocaine, he was an ignorant "go-fer" and did not
know what he delivered. To meet that defense, the district
court permitted the government to admit evidence of
Boone's prior drug-trafficking activities pursuant to Fed. R.
Evid. 404(b). However, the court gave a limiting instruction
in which it informed the jury that the evidence was being
admitted solely on the issue of Boone's knowledge of the
contents of the bag, and to demonstrate his prior
relationship with Farris and Mills. With that caution, the
court admitted evidence that, on different occasions, Mills
had observed Boone selling cocaine inside of the nightclubs
where Mills worked. The district court also admitted
evidence that Boone sold cocaine supplied by Farris. In
addition, even though the government also tried to admit
Boone's two prior drug-trafficking convictions into evidence,
the district court limited the government to a stipulation
that Boone had previously twice possessed cocaine with the
intent to deliver it. Boone argues that the district court
abused its discretion in admitting this evidence.

Rule 404(b) provides in relevant part that: "Evidence of
other crimes, wrongs or acts . . . may . . . be admissible . . .
for [certain] purposes, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident." (Emphasis added). Under Rule 404(b),17
evidence of other criminal conduct is "admissible whenever
relevant to a case other than [to show] the defendant's
criminal propensity." United States v. Sriyuth, 98 F.3d 739,
745 (3d Cir. 1996). The prime inquiry is whether the
evidence is probative of a material issue other than
character. Huddleston v. United States, 485 U.S. 681, 687
(1988).

The prior crimes evidence was admitted to show that
Boone was familiar with drug-trafficking practices and to
establish that his relationship with Farris and Mills
included drug-trafficking. The evidence demonstrated his
"knowledge," "intent" and "lack of mistake or accident." It
was properly admitted to rebut his defense of ignorance,
and not to establish a propensity for criminal conduct.
_________________________________________________________________

17. Admission of evidence under Rule 404(b) is reviewed for abuse of
discretion. United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996).

32
Boone does not complain about the limiting instructions
the trial court gave. The court cautioned the jury when the
evidence was admitted and again as part of the final jury
instructions, and those instructions were adequate to
address concerns that the evidence would be used for an
improper purpose.

Boone argues that evidence of his prior drug-trafficking
offenses established no "logical inferences" that he knew
the bag contained cocaine, as opposed to "stolen jewelry, or
platinum dust." Boone's Br. at 9. However, that very
argument illustrates the propriety of admitting evidence of
Boone's prior drug involvement. The government correctly
responds that evidence of one's familiarity with the
subterfuge and concealment inherent in drug-trafficking
was relevant to the issue of whether Boone may have
believed the bag contained contraband other than cocaine.
See United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st
Cir. 1990).18

Finally, we conclude that evidence of Boone's prior drug-
trafficking was harmless in any event. Farris testified that
he asked Boone to deliver cocaine to Agent Hilton posing as
"Malik," and that Boone agreed. Hilton testified that he
received the cocaine from Boone in a manner that was
characteristic of clandestine drug transactions and that the
cocaine was plainly visible to Boone. Mills then testified
that Boone acknowledged that he got involved because he
was then actively dealing drugs.
_________________________________________________________________

18. In Ferrer-Cruz, the court stated:

Since one who has previous experience with drugs is . . . more
likely
to recognize (and hence to know) that the bags' contents were drugs
that one without such experience, the inference at issue do not
involve character. . . . Moreover, the probative value of the
evidence
. . . is quite high. . . . [A] juror might have though that the
government failed to prove anything beyond [appellant's] presence
in
a car with cocaine; and, believing that the government failed to
prove [appellant] knew it was cocaine or that he intended to
deliver
cocaine to the co-defendants, such a juror might have voted to
acquit. The evidence of a past conviction might have helped
convince a juror of guilt through its permissible suggestion that
[appellant] knew about drugs and drug possession.

899 F.2d at 138.
33
Boone also challenges the district court's admission of
Mills' testimony that between 1984 and 1986, he observed
Boone selling cocaine inside the restrooms of two
nightclubs where Mills worked. In pressing this objection,
he concedes that the evidence was "minimally relevant to
knowledge." He claims, however, that its probative value
was outweighed by its prejudicial effect and it was therefore
inadmissible under the balance required by Fed. R. Evid.
403. Boone did not object to this testimony under Rule 403
in the district court. We therefore again review for plain
error, but Boone does not argue plain error even now.
Rather, he spends a great deal of time arguing that Mills'
testimony was incredible or unreliable. That was clearly an
issue for the jury to resolve, and it apparently did so in
favor of the government. Moreover, given Boone's"innocent
go-fer" defense, this evidence was proper under Rule 403.

2. Sufficiency of the Evidence.

Boone argues that evidence of his knowledge of the
contents of the package he delivered was insufficient to
sustain his conviction. He insists that he "never shared a
unity of purpose with Farris, and that he never even spoke
with Weston during the time-frame of the charged
conspiracy." He maintains that "he was never told, and had
no dependable basis to know, what was in the package he
delivered to Agent Hilton." Boone's Br. at 17. However,
Farris' testimony by itself is sufficient to support Boone's
conviction, and the jury apparently credited that testimony.
Farris testified that he: (1) selected Boone to deliver the
cocaine to Hilton because of Boone's long-standing ties to
Mills and Boone's prior drug dealing for Farris; (2) told
Boone that he wanted him to deliver cocaine and offered
Boone $100 and an eighth of an ounce of cocaine for the
job; and (3) Boone took the cocaine and agreed to deliver it.
See United States v. Hernandez, 962 F.2d 1152, 1156 (5th
Cir. 1992)(uncorroborated testimony of cooperating co-
conspirators that they had conspired to sell drugs, and that
appellant knew of, joined, and helped effectuate the
conspiracy, was sufficient to support conviction for violation
of 21 U.S.C. S 846).

34
Nonetheless, Boone argues Farris' testimony is not
sufficient because, according to Boone, on cross-
examination Farris "clarified that he only told Boone he had
a deal for him, and there was no specific mention of drugs."
Boone's Br. at 17. However, Boone mischaracterizes the
testimony Farris offered on cross-examination. When asked:
"what exactly did [he] say to Mr. Boone," Farris testified:

That I had something for him, a deal going in on a few
days and I asked him, did -- did he want to be a part
of it or something like that.

Farris failed to offer a verbatim recitation of what he told
Boone, even though he was asked for one. Farris related
only that he said "something like that." Farris' testimony
was not an admission that he failed to tell Boone that the
package Boone delivered contained cocaine. Moreover, this
argument again establishes the propriety of the
aforementioned 404(b) evidence. Assuming that Farris only
discussed the delivery in vague terms such as "doing a
"deal," it was important for the jury to understand Boone's
familiarity with the kind of vagaries that could cloak
discussions of a drug delivery.

In any event, the evidence was sufficient to sustain
Boone's conviction regardless of any inconsistency in Farris'
direct and cross-examination testimony. A jury is free to
believe part of a witness' testimony and disbelieve another
part of it. United States v. Prince, 883 F.2d 953, 958 n.3
(11th Cir. 1989). Thus, a witness' testimony is not
insufficient to establish a point simply because he or she
later contradicts or alters it. See United States v. Stirone,
311 F.2d 277, 284 (3d Cir. 1963)(evidence was sufficient
even though testimony of a government witness was to
some extent self-contradictory). Furthermore, we review the
sufficiency of the evidence in the light most favorable to the
verdict winner, and we credit all reasonable inferences that
support the verdict. United States v. Riddick , 156 F.3d 505,
508 (3d Cir. 1998). We will sustain the verdict if any
rational trier of fact could have found the essential
elements of the crimes beyond a reasonable doubt based
upon the evidence viewed in that light. United States v.
Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996).

35
The jury here could easily have credited Farris' direct
testimony that Boone agreed to deliver what he was told
was a package of cocaine, notwithstanding any purported
inconsistency on cross-examination. Accordingly, we
conclude that the evidence was sufficient to support
Boone's conviction.

3. The District Court Erred by Not Granting
a New Trial Based on the Government's Failure
to Disclose Brady Material.

Boone claims that the government failed to disclose two
items of exculpatory information in violation of Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny, and he is
therefore entitled to a new trial.

In Brady v. Maryland, the Supreme Court held that
"suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution." 373 U.S. at 87. The affirmative duty to
disclose includes impeachment evidence as well as
exculpatory evidence. United States v. Bagley , 473 U.S.
667, 676 (1985). In Strickler v. Greene, 527 U.S. 263 (1999),
the Court wrote:

[T]he term "Brady violation" is sometimes used to refer
to any breach of the broad obligation to disclose
exculpatory evidence--that is, to any suppression of
so-called "Brady material"--although, strictly speaking,
there is never a real "Brady violation" unless the
nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have
produced a different verdict. There are three
components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must
have ensued.

Id. at 281-82.

36
The first claimed Brady violation is a statement of a
confidential informant. Boone first learned about this
confidential informant in the Presentence Report, which
read, at P 9, as follows:

In early 1997, [law enforcement officials] received
information from a confidential source19 . . . that
several individuals, including THOMAS WESTON,
a/k/a Rasul; CURTIS FARRIS, a/k/a C-Allah; LARRY
BOONE, a/k/a God Supreme; and HERBERT JONES
were responsible for the distribution of significant
quantities of "crack" in the Asbury Park area.

After he received a draft of the PSR, Boone, by letter dated
May 12, 1999, sought disclosure of information relating to
this informant. The government responded by informing
Boone that the informant had stopped cooperating with the
authorities before Boone was released from state prison in
early 1997. In other words, the government conceded that
the representation in the PSR that the confidential
informant had provided information about Boone was
erroneous.

Nonetheless, Boone claims this non-disclosure violated
due process. The argument is, however, somewhat difficult
to follow. If the confidential informant made the statement
about Boone, it certainly would not be exculpatory or
material. On the contrary, if the statement was made it
would have been inculpatory and not subject to Brady
disclosure. In any event, Boone contends that if the PSR
was correct, i.e., had the confidential informant made an
inculpatory statement about him, he (Boone) could have
called the confidential informant as his own witness and
established that the allegations were false. He claims he
"could have impeached the unknown informant and shown
that Boone had been falsely accused of being an early
coconspirator, which created a domino effect, causing Mills,
Farris, and Agent Hilton to either lie or mold their stories
to fit the framework of their target conspiracy." Boone's Br.
at 19-20.
_________________________________________________________________

19. Stewart Mills, who testified at trial, is identified as a second
confidential informant in P 9 of the PSR, and is not the same person
identified in this excerpt.

37
However, Boone fails to tell us how his new twist on the
"domino theory" would have exculpated him. Moreover,
even if we assume that Boone could have somehow shown
that the confidential informant had falsely implicated him,
he has not even attempted to establish that Mills, Farris
and/or Hilton were even aware of the informant's
statement, or that they perjured themselves and conspired
to "mold their testimony" to conform to it.

Alternatively, Boone suggests that even if the government
was correct that the confidential informant's statement was
wrong, the statement was actually exculpatory because he
could have used the statement to show the jury that he
could not have been a member of the Weston, Farris and
Jones drug conspiracy during the time he was in state
prison. However, assuming arguendo that the statement
would be exculpatory as posited, Boone has not shown that
it was material. The test for materiality is whether the
failure to disclose prejudiced the defendant, i.e., whether
the failure to disclose undermined confidence in the
outcome of the trial. See Smith v. Holtz, 210 F.3d 186, 195-
200 (3d Cir. 2000). The fact that Weston, Farris and Jones
were engaged in drug-trafficking prior to Boone's release
from state prison does not negate Farris' testimony that he
recruited Boone after Boone's release from prison for the
express purpose of delivering cocaine to Agent Hilton on
July 11, 1997. In fact, it corroborates that testimony. Once
Boone agreed to the July 11th transaction, he joined the
conspiracy.

The second Brady violation Boone asserts involves a
statement co-defendant Jones made to a pre-sentence
investigator after pleading guilty. Jones told the investigator
that Weston typically wrapped his drugs in brown paper
bags. According to Boone, he could have used this
information to show that the cocaine Farris received from
Weston and gave to Boone was wrapped in a brown paper
bag, thereby preventing Boone from knowing that cocaine
was inside. However, Boone did not need Jones' statement
to establish this because Farris testified that the cocaine he
delivered to Boone was wrapped in a brown paper bag.
Thus, Jones' statement would have been cumulative and,
consequently, not material. See United States v. Burns, 162

38
F.3d 840, 851 (5th Cir. 1998)(non-disclosure of information
that supported the defense theory that fraudulent billing
was caused by untimely reimbursements by victim agency
was not material because it was merely cumulative of other
evidence elicited by defense on this point). Moreover, Agent
Hilton testified that by the time Boone delivered the cocaine
to him, it was in a clear plastic bag. Jones' statement does
not contradict that statement because the cocaine was
wrapped in a clear plastic bag that was then placed in the
brown paper bag that was handed to Boone.

4. The District Court Erred in Instructing
the Jury That It Could Consider Evidence That
Boone Attempted to Influence a Witness as
Indicative of Consciousness of Guilt.

Boone argues that the court erred in instructing the jury
that evidence of the threatening letter Farris received
(apparently from Weston, or at his direction) could be
considered as consciousness of guilt. That evidence, which
we have set forth above, was admitted without objection,
and Boone does not challenge its admission here. Boone
objected to the charge at trial, but was overruled. He does
not now argue that the charge did not accurately state the
law. Rather, he argues that the district court's charge was
unfair and inappropriate. First, he argues that it was unfair
because it "lump[ed] together" Boone's and Weston's prison
contacts with Farris. Boone's Br. at 23. He argues this was
unfair because Weston asked Farris to lie, but he (Boone)
simply asked Farris to tell the truth. That is, Boone
maintains that he asked Farris to "truthfully" state that
Boone innocently accompanied Farris to the Collingwood
Auction to ask Mills for a legitimate job, not knowing that
Farris had solicited Boone to deliver cocaine. This argument
again misstates the trial testimony. Farris testified that he
clearly and fully informed Boone that Boone was being
hired to deliver cocaine. According to Farris, Boone did not
accompany Farris to the Collingwood Auction to ask Mills
for a job.

Boone's other arguments about the consciousness of
guilt instruction are equally meritless. Boone claims that
the instruction was unwarranted because "the government

39
placed their witnesses among his co-defendants in[the jail]
. . . and continuous banter went back and forth to and
from Farris." Boone's Br. at 44. Although Boone's point
here is rather elusive, we assume (as does the government),
that Boone is suggesting that the government attempted to
entrap Boone by creating an opportunity for him to discuss
his drug dealing in front of Farris after Farris agreed to
cooperate. This is apparently based upon an argument that
the government intentionally failed to segregate Farris from
Boone and Weston after Farris began cooperating. Boone
does not offer any proof to support this claim, and we fail
to see the legal basis for an "entrapment" claim even if
Boone had such evidence. Therefore, this argument must
fail.

Finally, Boone claims that Farris, not Boone, initiated
their discussion in the library regarding drafting an
exculpatory letter. However, that argument misses the
point, and is also contradicted by Farris' testimony. The
fact that the defense presented other prison inmates who
claimed that Farris admitted to them that Weston and
Boone were not guilty of the charges only created a jury
question regarding Farris' credibility. The court properly left
that question to the jury.

5. The District Court Erred by Not Charging
That a Single Transaction Does Not Establish
Conspiracy Membership, or That a Member Can
Constructively Terminate His Membership.

Boone argues that the district court improperly denied
his request for an instruction that his involvement in a
single transaction did not prove that he was guilty of
conspiracy. He relies upon our decision in United States v.
Price, 13 F.3d 711, 726-29 (3d Cir. 1994). There, we
reversed a jury instruction that a defendant could be guilty
of conspiring to distribute cocaine by offering to buy
cocaine from a member of the conspiracy, even if the buyer
had no intention of reselling the cocaine. Here, however,
Boone did not buy drugs; he delivered them. Thus, Price
does not help him. In fact, the evidence clearly
demonstrated that Boone was brought into the conspiracy
to deliver Weston's cocaine, collect the purchase price and

40
remit it to Farris. Boone was only to be paid if he delivered
the cocaine, and Weston and Farris would receive the
money only if Boone delivered the cocaine and collected the
sales price. This is sufficient to prove a conspiracy. See
United States v. DiPasquale, 740 F.2d 1282, 1292 (3d Cir.
1984). Accordingly, the district court properly denied the
requested instruction.

Moreover, the evidence refutes Boone's claim that he was
only involved in one illegal act. Farris selected Boone to
deliver cocaine to "Malik" on July 11th because Boone had
previously delivered cocaine for Farris and because Boone
was friendly with Mills. Farris' subsequent attempt to use
Boone for another delivery to "Malik" on August 1, was
stymied only because Farris could not find Boone.
Meanwhile, Boone was assuring Mills that he (Boone) could
provide Mills with large amounts of cocaine to sell. This
evidence establishes Boone as a member of an ongoing
conspiracy; not a one-time participant.

The district court instructed the jury that, after joining a
conspiracy, a person may terminate his involvement only by
"an affirmative act of termination . . . withdrawal or
disassociation." Boone argued that he was entitled to a
"constructive termination" instruction based on the
argument that he constructively terminated his
membership in the conspiracy by participating in only one
transaction. He has presented no authority for that rather
novel proposition, and we are not aware of any. Rather, we
believe the district court accurately stated the law. Boone
was required to make a prima facie showing of affirmative
acts to defeat or disavow his membership in the conspiracy.
Such acts of disavowal include making a full confession to
authorities or renouncing the conspiracy to the co-
conspirators. United States v. Antar, 53 F.3d 568, 582 (3d
Cir. 1995). The mere cessation of activity is insufficient to
establish withdrawal. Id. at 582. Boone did nothing to
attempt to withdraw. Therefore, the district court did not
err in refusing to give the requested jury instruction.

41
6. The District Court Erred by Finding
that Boone Did Not Accept Responsibility
for his Crime.

Finally, Boone claims that the district court committed
clear error by finding that he did not "accept responsibility"
for his crimes and declining to reduce his Offense Level
pursuant to U.S.S.G. S 3E1.1. A defendant seeking a
reduction for acceptance of responsibility bears the burden
of establishing by a preponderance of the evidence that he
or she is entitled to the reduction, and we review the
district court's denial of the reduction for clear error. United
States v. Muhammad, 146 F.3d 161, 167 (3d Cir. 1998).
The district court's denial of the reduction is entitled to
"great deference" because "[t]he sentencing judge is in a
unique position to evaluate a defendant's acceptance of
responsibility." U.S.S.G. S 3E1.1, Application Note 5.

Boone's claim of acceptance of responsibility is hard to
take seriously. It is based upon a statement he gave to
investigators after he was arrested that he now argues was
"in all respects a complete confession." Boone's Br. at 28.
After his arrest, Boone waived his Miranda rights and
agreed to give a statement to investigators. In that
statement he claimed that, on July 11, 1997, Farris asked
him to do a favor and "give this guy a package." Boone said
he agreed, and Farris drove Boone to the Collingwood
Auction. Boone admitted that he delivered the package, and
that he skimmed $100 from the money that he received
from "Malik." He denied any knowledge of Farris' cocaine
supplier. Boone did not admit that he committed the
charged offenses, and he did not admit that he knew the
package contained cocaine. Given the evidence here, his
"cooperation" is more a false exculpatory statement than an
acceptance of responsibility. A defendant does not earn the
acceptance of responsibility reduction simply by speaking
to investigators. See United States v. DeLeon-Rodriquez, 70
F.3d 764, 767 (3d Cir. 1995)(district court did not commit
plain error by denying acceptance reduction where
appellant's pre-trial statement to investigators stopped
short of a full confession). Continuing his game of"cat and
mouse," Boone argues that he did not admit that he knew
that the package contained drugs because he was not

42
specifically asked by the investigators. However, we cannot
help but cast a particularly jaundiced eye on that assertion
because it strikes us as nothing more than a post-hoc
fabrication to buttress his appeal.

Boone would be hard pressed to demonstrate that he
accepted responsibility even with his post-arrest statement.
He seeks the benefit of the portion of U.S.S.G.S 3E1.1
Application Note 2, that provides that "where a defendant
goes to trial to assert and preserve issues that do not relate
to factual guilt (e. g., to make a constitutional challenge to
a statute or a challenge to the applicability of a statute to
his conduct)", a defendant may be entitled to the
acceptance of responsibility reduction. That provision is of
no avail here.

Initially, Boone attempted to rely on the panel opinion in
United States v. Singleton, 144 F.3d 1343 (10th Cir.
1998)(Singleton I), which held that the government was
barred from making promises of leniency to cooperating
witnesses in exchange for their truthful testimony against
a defendant. Thus, he filed a pre-trial motion seeking to
suppress Mills' testimony based on Singleton I . He concedes
that his suppression motion was probably a dead letter by
the time of trial because the panel decision had been
reversed by the Court of Appeals for the Tenth Circuit en
banc. 165 F.3d 1297 (10th Cir.) (Singleton II).20 Nonetheless,
he claims that even though the Court of Appeals for the
Tenth Circuit repudiated Singleton I by the time of his trial,
we had not as yet addressed the issue.21 Thus, he argues
that he continued to fall under the exception explained in
Application Note 2.

However, we are hard pressed to see how Boone could
seriously argue for an acceptance of responsibility
reduction. He opposed the admission of relevant,
inculpatory evidence, and challenged as incredible the
testimony of government witnesses Mills, Farris and Agent
Hilton. We think the law is clear that such actions are
_________________________________________________________________

20. The Supreme Court later denied a petition for certiorari. 527 U.S.
1024 (1999).

21. When this appeal was argued we had decided United States v. Hunte,
193 F.3d 173 (3d Cir. 1999) in which we rejected Singleton I.

43
inconsistent with the "acceptance of responsibility"
reduction in the Guidelines. United States v. DeLeon-
Rodriquez, 70 F.3d at 767 (acceptance of responsibility
reduction properly denied because appellant challenged the
admission of and accuracy of the government's trial
evidence, and argued for a verdict of not guilty).

VI. CONCLUSION

For all of the above reasons, we will affirm Boone's
sentence of judgment and conviction and will affirm
Weston's conviction. However, we will vacate Weston's
sentence and remand solely for the district court to
determine his Base Offense Level consistent with our
opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

44