United States v. Polk

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 93-7605

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE JAMES POLK,
DERICK O. CARTER,
ROBERT WELCH and
RONALD McMILLIAN,

Defendants-Appellants.

Appeal from the United States District Court
For the Southern District of Mississippi
(June 16, 1995)

Before KING, EMILIO GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The four defendant-appellants, Willie James Polk, Derrick O.

Carter, Robert Welch and Ronald McMillian, were charged in a

February 17, 1993 indictment with conspiracy and substantive

offenses relating to their involvement in a crack cocaine operation

based in Moss Point, Mississippi from 1989 to 1992. Several other

conspirators were named in the indictment but did not go to trial

with the appellants for various reasons. Dwight Earl Jackson

pleaded guilty and testified at trial against the appellants. Mark

1
A. Thomas, a/k/a "Jim" -- who the evidence shows participated

significantly in many of the drug transactions described below --

was granted a severance, and comments from the district court

indicate that Thomas was under psychiatric treatment and was being

evaluated for fitness to stand trial. Terry Anthony Austin, the

brother of defendant-appellant Carter, was also granted a separate

trial. Houston Chambers, who the evidence shows participated in the

June 1992 Eialand Plaza drug transactions, pleaded guilty to one

count and did not go to trial.

The alleged ringleader of the drug distribution enterprise,

co-defendant Eric James a/k/a "Gold Dog," went to trial with the

four appellants and was found guilty on all counts charged.

However, James waived his right to appeal in exchange for a

sentence reduction, so his convictions are not before us.

Appellants Polk, Carter, Welch and McMillian were convicted by

a jury on June 11, 1993 of the following offenses:

! Count 1: Conspiracy to possess cocaine base with the intent to
distribute from about 1989 to June 1992 in violation of 21 U.S.C.
§§ 841(a)(1), 846 (Polk, Carter, Welch and McMillian);

! Count 3: Possession of cocaine base with intent to distribute on
April 23, 1992, and aiding and abetting thereof, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2 (McMillian);

! Count 5: Possession of cocaine base with intent to distribute on
April 30, 1992, and aiding and abetting thereof, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2 (McMillian);

! Count 6: Possession of cocaine base with intent to distribute on
June 16, 1992, and aiding and abetting thereof, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2 (McMillian and Carter);

! Count 7: Possession of cocaine base with intent to distribute on
June 18, 1992 in violation of 21 U.S.C. § 841 (McMillian);

2
! Count 8: Possession of cocaine base with intent to distribute on
or about June 22, 19921, and aiding and abetting thereof, in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Welch);

! Count 9: Possession of cocaine base with intent to distribute on
or about June 23, 1992, and aiding and abetting thereof, in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Welch);

! Count 10: Carrying a firearm during and in relation to a drug
trafficking crime "on or about June 23, 1992, and prior thereto,"
and aiding and abetting thereof, in violation of 18 U.S.C. §§ 2 and
924(c) (Welch).

The appellants were sentenced as follows: Polk received 292

months of imprisonment on Count 1. Carter received 262 months on

Count 1 and 240 months on Count 6, to run concurrently. Welch

received 235 months for Count 1, 235 months for Count 8 and 235

months for Count 9, to run concurrently, and a consecutive 60-month

sentence on Count 10. McMillian received 262 months on Count 1 and

240 months each on Counts 3, 5, 6 and 7, to run concurrently.

1
The two cocaine possession transactions for which Welch was
convicted ("the Eialand Plaza transactions") were alleged to have
occurred in Louisville, Mississippi within hours of each other, one
before and one after midnight. The indictment shows a date of June
22, 1992 for the Count 8 transaction and a date of June 23, 1992
for the Count 9 transaction. However, the evidence showed that the
transactions actually took place on June 23 and June 24, 1992. The
firearm possession charge in Count 10 relates to one or both of
these transactions. The prosecutor argued to the jury that "if [the
dates in the indictment] are off by a day or two, that's for you to
decide. I mean, if you're satisfied that the evidence supports
those transactions that occurred according to the witnesses'
testimony, the fact that the grand jury might be off a day or two
is not something which would be dispositive unless you think that
-- that relates to your decision in some way." The district court
instructed the jury: "You will note that the indictment charges
that the offense was committed on or about a specified date. The
government does not have to prove that the crime was committed on
that exact date, so long as the government proves beyond a
reasonable doubt that the defendants committed the crime on a date
reasonably near the date stated in the indictment."

3
 All four defendant-appellants have appealed their convictions,

raising various grounds for reversal. None of the appellants raises

sentencing issues in this appeal.

FACTUAL BACKGROUND2

The four defendants grew up knowing one another in the same

neighborhood in Moss Point, Mississippi, near the intersection of

Barnett and Church streets. James/"Gold Dog" owned a house on

Barnett Street nicknamed "the camp" that in the years 1989 to 1992

was a site for sales of crack cocaine. The small, run-down Barnett

Street house had beds, electricity and phone service but no water

or gas. There was a high chain-link fence within 18 inches of the

house, and pit bulls were maintained as guard dogs. One witness

testified that the camp was a crack house run in shifts and open 24

hours a day. A Volkswagen van was parked in the yard. There was

testimony that Polk, Carter, Welch, McMillian and others sold crack

from the house, from the van and elsewhere, sometimes returning the

money they received to James, and that guns were kept in the van to

protect the drugs. One witness testified that the eight or nine

people working for James at the Barnett Street house would sell

about a kilogram of cocaine every two weeks. In the spring and

early summer of 1992, government agents made several undercover

drug purchases at the Barnett Street address, using two

confidential informants. Some of the transactions were tape-

recorded, and videotape was taken on at least one occasion.

2
Because this is a sufficiency of the evidence review, the
facts are stated in the light most favorable to the government.

4
 Evidence showed that James obtained large shipments of cocaine

from Houston, converted it to crack and distributed it through

street-level dealers in Moss Point, Mississippi and other

communities. An airport narcotics officer testified that in 1991

narcotics officials at the New Orleans Airport seized more than

$30,000 in cash from James and three other people who had bought

cash one-way tickets to Houston and fit the drug profile. The money

was forfeited without protest from James.

In a challenged evidentiary ruling, the court admitted

evidence about an undercover operation in Laurel, Mississippi on

July 24, 1992 in which James arranged to buy five kilograms of

cocaine for $110,000 from a "source" who was actually an undercover

officer. The court instructed the jury that the evidence of the

five-kilogram transaction related only to James and could not be

used in any way against defendant-appellants Polk, Carter, Welch or

McMillian. James and several other people, including co-

conspirator/government witness Cedric Carter, were arrested, were

charged and pleaded guilty in a separate case in relation to the

July 24, 1992 five-kilogram transaction.3

The evidence showed that James did not live in the Barnett

Street house; he lived in a larger, well-kept rented house on

Griffin Street in Moss Point. However, there was testimony that

3
The evidence of the events of July 24, 1992 was introduced in
the instant case, over James' double jeopardy objection, to prove
the government's charge in Count 12 that James had enticed a minor,
his 16-year-old nephew, to become involved in a drug transaction.
James was convicted in Count 12 and in Count 2 for maintaining a
house for the purpose of distributing cocaine. As noted above,
James did not appeal these convictions.

5
James visited the Barnett Street house every day to collect money

from the drug sales. Government surveillance established that all

drug activity ceased at the Barnett Street house after July 24,

1992, the day James was arrested and taken into custody.

DISCUSSION

Sufficiency of the Evidence Issues

All four defendant-appellants challenge the sufficiency of the

evidence to support their convictions on Count 1, conspiracy.

Carter, McMillian and Welch challenge the sufficiency of the

evidence to support their convictions on the individual substantive

cocaine possession offenses in Counts 3, 5, 6, 7, 8 and 9. Welch

challenges the sufficiency of the evidence to support his

conviction in Count 10 for using or carrying a firearm in

connection with a drug offense. All defendants preserved the

sufficiency issues at trial by moving for judgments of acquittal on

all counts, both after the government rested and after all

defendants rested.

We find that the evidence introduced at trial was sufficient

to support the convictions of Polk, Carter, Welch and McMillian in

Count 1 (conspiracy), and of McMillian in Counts 5, 6 and 7 and of

Welch in Count 8 (possession with intent to distribute), and we

therefore affirm those convictions. However, for the reasons we

discuss below, we find that the evidence was insufficient to

support the convictions of McMillian in Count 3, Carter in Count 6

and Welch in Counts 9 (possession with intent to distribute) and of

6
Welch in Count 10 (use/carrying of firearm in relation to a drug

crime), and we therefore reverse those convictions.4

The elements of a drug conspiracy are: (1) the existence of an

agreement to possess narcotics with the intent to distribute, (2)

knowledge of the agreement, and (3) voluntary participation in the

agreement. United States v. Fierro, 38 F.3d 761, 768 (5th Cir.

1994), cert. denied, 115 S. Ct. 1431 (1995); United States v.

Mergerson, 4 F.3d 337, 341 (5th Cir. 1993), cert. denied, 114 S.

Ct. 1310 (1994). The jury may infer a conspiracy from

circumstantial evidence and may rely upon presence and association,

along with other evidence. Proof of an overt act in furtherance of

the conspiracy is not required; a common purpose and plan may be

inferred from a development and collection of circumstances.

4
In some cases, a defendant who participates in a conspiracy
may be "deemed" guilty of substantive counts, such as possession,
committed by a co-conspirator in furtherance of the conspiracy.
Pinkerton v. United States, 328 U.S. 640, 645 (1946); United States
v. Crain, 33 F.3d 480, 486 n.7 (5th Cir. 1994), cert. denied sub
nom. Watkins v. United States, 115 S. Ct. 1142 (1995); United
States v. Basey, 816 F.2d 980, 997-98 (5th Cir. 1987). However, a
substantive conviction cannot be upheld solely under Pinkerton
unless the jury was given a Pinkerton instruction. Crain, 33 F.3d
at 486 n. 7; United States v. Sanchez-Sotelo, 8 F.3d 202, 208 (5th
Cir.1993) ("Since the district court did not instruct the jury
[under Pinkerton], proof of the conspiracy alone will not sustain
the possession charge against Sotelo."), cert. denied, 114 S. Ct.
1410 (1994); Basey, 816 F.2d at 998. Basey held that, at a minimum,
a proper Pinkerton instruction should state clearly that the
defendant can be convicted of a substantive crime committed by his
co-conspirator in furtherance of the conspiracy. Basey, 816 F.2d at
998 & n. 35. The jury in this case was not given such an
instruction. Therefore, even though we have affirmed each
appellant's conviction on the conspiracy count, the individual
substantive convictions must stand or fall on the government's
evidence against the individually charged defendant regarding that
particular count. Crain, 33 F.3d at 486; Sanchez-Sotelo, 8 F.3d at
208.

7
Fierro, 38 F.3d at 768; United States v. Robles-Pantoja, 887 F.2d

1250, 1254 (5th Cir. 1989). On a sufficiency review, the appellate

court must consider all evidence in the light most favorable to the

guilty verdict and accept all reasonable inferences tending to

support the verdict. The ultimate inquiry is whether a rational

trier of fact could have found guilt on each count beyond a

reasonable doubt. Fierro, 38 F.3d at 768; United States v.

Huntress, 956 F.2d 1309, 1318 (5th Cir. 1992), cert. denied, 113 S.

Ct. 2330 (1993).

To sustain a conviction for possession with intent to

distribute, the government must show that the defendant (1)

knowingly (2) possessed contraband (3) with the intent to

distribute it. United States v. Garcia, 917 F.2d 1370, 1376 (5th

Cir. 1990). Even if actual possession is not shown, a conviction

may rest on proof of "constructive possession," which exists when

the defendant has ownership, dominion or control over the

contraband or over a vehicle where it was found. Id.

To sustain a conviction for aiding and abetting under 18

U.S.C. § 2, the government must show that a defendant associated

with a criminal venture, purposefully participated in the criminal

activity, and sought by his or her actions to make the venture

succeed. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.

1995), cert. denied, 1995 WL 251644 (May 22, 1995); Fierro, 38 F.3d

at 768; United States v. Ledezma, 26 F.3d 636, 641 (5th Cir.),

cert. denied sub nom. Zajec v. United States, 115 S. Ct. 349

(1994). To aid and abet simply means to assist the perpetrator of

8
a crime with some affirmative act designed to aid the venture,

while sharing the requisite criminal intent. Jaramillo, 42 F.3d at

923. Mere presence and association, however, are not alone enough

to sustain a conviction for aiding and abetting. Id.

The bulk of the government's conspiracy evidence at trial came

from the testimony of two "cooperating witnesses" -- Dwight Earl

Jackson ("Jackson") and Cedric Darnell Carter ("Cedric").5 Both

Jackson and Cedric grew up in the same neighborhood as James and

the appellants, and both admitted to using crack cocaine and

selling crack for James at the Barnett Street house. Jackson was

initially indicted along with the appellants, but he pleaded guilty

and testified pursuant to a plea agreement. Cedric pleaded guilty

to conspiracy to possess cocaine in a separate case involving James

and the five-kilogram transaction. On cross-examination, Cedric

said he was testifying in this trial at the request of the

prosecutor and in the hope that he might get a sentence reduction.

Jackson testified that he has known James all his life and

that he spent a lot of time at the Barnett Street house from 1990

to 1992, selling crack cocaine for James. He testified that Polk,

Carter, Welch and McMillian also sold crack cocaine for James at

the Barnett Street house during that time period. Cedric said he

spent time around the Barnett Street house in June and July of

1992. After working for James at the James' nightclub, "America's

Most Wanted," Cedric started to sell crack cocaine for James.

5
We refer to co-conspirator/government witness Cedric Darnell
Carter as "Cedric" to avoid confusion with defendant-appellant
Derrick O. Carter ("Carter"). The two Carters are not related.

9
Cedric said that at this time he was smoking crack "like a broke

chimney," and that he bought crack from and sold crack to Carter

and McMillian, and to a lesser extent Polk, but not from Welch.

All four defendant-appellants argue that the testimony of

Jackson or Cedric, or both, was not credible, and indeed the two

witnesses contradicted themselves and each other at several points.

However, we note that non-credibility is generally not a sound

basis for alleging insufficiency of the evidence on appeal; it is

the jury's function to determine credibility. United States v.

Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied sub nom.

Garza v. United States, 115 S. Ct. 1825 (1995). Defense counsel

cross-examined Jackson and Cedric vigorously on their inconsistent

statements, prior criminal conduct, drug use, government promises

and possible inducements for them to lie or exaggerate. To the

extent the appellants challenge sufficiency by attacking the

government witnesses' credibility, their arguments on this point

are without merit. See Bermea, 30 F.3d at 1552 (holding that "a

guilty verdict may be supported only by the uncorroborated

testimony of a coconspirator, even if the witness is interested due

to a plea bargain or promise of leniency, unless the testimony is

incredible or insubstantial on its face.").

The following evidence relating to the conspiracy and

possession counts was introduced against each of the defendant-

appellants:

10
Evidence against Willie Polk:

Jackson identified Polk in the courtroom, testified that he

knows Polk's father and has been friends with Polk all his life,

and said that Polk's nickname is "Spring." Jackson testified that

during the years 1990 to 1992, Polk stayed at the house on Barnett

Street (which was called the "camp") and sold crack for James out

of the house and out of the Volkswagen bus in the front yard of the

house, at various times during all three around-the-clock "shifts."

Jackson said Polk was "the one who made [Gold Dog] what he is

today," and that Polk "sold more dope for [Gold Dog] than anybody."

Jackson testified that Polk was trusted at the camp, knew where the

drugs were hidden, was known and trusted by the guard dogs at the

house, and sometimes borrowed cars from James. Jackson also

testified that he had seen Polk at James' nightclub "America's Most

Wanted," and at James' residence on Griffin Street, and that Polk

was trusted enough to have access to the Griffin Street house to

pick up drugs. Jackson testified that Polk at some point was also

a crack user.

Jackson identified Polk as one of the men who posed in a

photograph with James and another man. In the photo, Polk is

holding a pistol, wearing sunglasses and standing in front of a

junior high school next to James, who was holding a pile of money.

Jackson said the photo was "when Gold Dog first made $10,000. He

got together and brought all his money up ... and get a couple of

the guys that work for him, [and] they take a picture." Polk's

attorney argued to the jury that the man in the photograph next to

11
James was not Polk and in fact looked about 6 inches taller than

Polk, but the jury had a chance to look at the photograph and to

look at James and Polk standing next to each other in the

courtroom. In closing arguments, the prosecutor argued that the

photo showed the men leaning on a car, which could make a

difference in their apparent heights.

Polk was identified by ATF Agent Bobby Wright as being present

at the April 28, 1992 transaction in which the confidential

informant ("CI") bought $130 worth (1 gram) of crack cocaine from

co-indictee Mark Thomas. Wright was not the CI but was doing

surveillance that day and personally saw Polk at the transaction.

Wright, who monitored the transaction through the CI's body wire,

said it is Polk's voice on the tape of the April 28 transaction

talking about "no one bought any last night," after Thomas

threatened to kill Polk if Polk didn't give Thomas his money.6

Agent Wright testified that, while in plain clothes, he called

Polk "Spring" on the street and Polk answered him, thus verifying

that Spring was Polk's nickname. Agent Wright also verified the

alias with records from the Moss Point Police Department. On an ATF

surveillance videotape taken on April 30, 1992 at the Barnett

Street house, an unknown woman accompanied by a child calls out for

6
As we note later in this opinion, McMillian and Polk were
originally charged in Count 4 with possession of cocaine base with
the intent to distribute in connection with the April 28
transaction, but the trial court granted McMillian's and Polk's
motions for acquittal on that count. Therefore, the evidence
regarding the April 28 transaction is relevant only to the
conspiracy count.

12
either "Spring" (according to Wright) or "Frank" (according to

Polk's counsel).7

Cedric testified that he went to school with Polk, grew up

with him and calls him "Spring." During a break in Cedric's

testimony, Cedric borrowed a cigarette from Polk. Cedric, who said

he used to be a heavy crack cocaine user, testified that he had

both bought crack from and sold crack to Polk at the camp. (Later

Cedric contradicted himself and stated that he didn't sell Polk any

drugs, but that he occasionally would give Polk a few $20 rocks of

crack in exchange for Polk's protecting him, i.e., "watching

[Cedric's] back," and that Polk didn't sell drugs for James at the

camp, but that Polk would occasionally sell Cedric a $20 rock.)

Cedric also identified Polk as the man in the photo with James.

Evidence against Derrick Carter:

Jackson identified Carter in the courtroom and testified that

he has known Carter all his life and that Carter's nickname is

7
Polk and McMillian claim that the trial court erred in
allowing Agent Wright to give his own interpretation of what name
the woman spoke. During the showing of the tape, the agent stated,
"Here the young lady is hollering out for `Spring.'" Polk and
McMillian claim that the spoken word was actually "Frank," and that
it was improper to allow such opinion testimony by a lay witness.
The evidence did not show anyone connected with the case named
Frank. When objection was made at trial, the court stated that the
defense could argue its own interpretation of the tape on cross-
examination. Polk's counsel did so, and played the tape again so
the jury could determine what name was spoken. The jurors were
instructed that their own recollection of the tapes was to control
their deliberations, and there is no indication that the jurors
failed to understand or follow that instruction. In addition, we
note that Wright was the officer operating the video camera on that
date, and he had personal knowledge of what he heard. We find no
error.

13
"Doo-Doo." Jackson testified that during the years 1990 to 1992,

Carter sold crack cocaine out of the Barnett Street house, and out

of the van in front of the house, on behalf of James. Jackson

testified that he also saw Carter selling drugs "from the camp to

the village," referring to Carver Village in Pascagoula,

Mississippi. Jackson also identified the house at 4501 Church

Street where Carter lived, within walking distance of the "camp,"

and testified that Carter also sold crack from that house, often

when the police were watching the Barnett Street house. Jackson

identified a orange/brown 1981 Honda Civic in a photograph as

Carter's car, and stated that James bought the car for Carter at an

auction. Agent Wright also identified the car in the photograph as

belonging to Carter, and the government introduced license tag

registration documents showing that the Honda was registered to

Derrick Carter at 4501 Church Street. Wright also testified that

Carter lived at the Church Street house and identified the house

from a photograph.

Cedric identified Carter in the courtroom and testified that

he knows Carter and Carter's mother, and that Carter's nickname is

"Doo-Doo." Cedric testified that in 1991 and 1992, when he was a

heavy crack cocaine user, he bought crack from Carter and others at

the Barnett Street house. In June 1992, Cedric was selling cocaine

for James at the camp, and he testified that Carter was one of his

customers who bought "cookie" amounts large enough to break up and

re-sell at a profit. Cedric also testified that Carter was among

those who came to the Barnett Street house to hang around and play

14
cards or basketball, and that he also saw Carter at James'

nightclub, "America's Most Wanted."

Wright testified that on June 16, 1992, he sent two

confidential informants to the Barnett Street house to make a

controlled purchase of crack cocaine. The two CIs found no one

present at the house, and as they turned around to leave, the Honda

Civic identified as belonging to Carter pulled up in front of the

Barnett Street house. Two men were in the Honda, an "unidentified

black male" and another man who Wright identified as McMillian.

Wright said McMillian got out of the car and recognized one of the

CIs as a person who had previously bought crack cocaine at the

Barnett Street house. Wright testified that McMillian said the

police were watching the Barnett Street house, so they had shut

down operations there, but McMillian told the CIs to get back in

their car and follow the Honda down the block to the house at 4501

Church Street (Carter's residence), where the CIs purchased $300

worth (4 grams) of crack cocaine. Wright monitored the entire

encounter and transaction via a body wire on one of the CIs. Later

on the same day, the same car, Carter's Honda Civic, was seen and

photographed parked in front of James' house on Griffin Street. The

photograph was entered into evidence.

The "unidentified black male" who was in Carter's car along

with McMillian during the June 16 drug transaction was never

positively identified as being Carter or anyone else. One of the

CIs at first incorrectly identified the man as co-indictee Terry

Anthony Austin, Carter's brother. But Agent Wright confirmed on the

15
stand that this identification had to be wrong, because Austin was

incarcerated on that date.

ATF Agent James Render was working with Wright on June 16,

1992. Render confirmed the circumstances of the drug purchase at

4501 Church Street, and testified that he took the photograph of

Carter's car in front of James' house. A Buick Regal belonging to

co-indictee Mark Thomas is also parked in front of James' house in

the same photograph.

The government introduced into evidence a service agreement

indicating that Derrick O'Neal Carter of 4501 Church Street

purchased a pager on November 1, 1991. The document lists Carter as

a student and his "type of business" as "America's Most Wanted Game

Room," the nightclub owned by James. The pager service agreement

also lists Carter's phone number as 475-9640, which a phone company

witness later confirmed was the phone number at the Barnett Street

house. Carter's attorney argued to the jury that no one testified

to seeing Carter with a pager, and that anyone could fill out such

an application with someone else's name on it.

In a evidentiary ruling challenged by Carter, the district

court allowed Moss Point Police Officer John Gaffney to testify

about a search warrant executed at 4501 Church Street on April 28,

1993 (about a year after the charged conspiracy). The evidence was

admitted under Federal Rule of Evidence 404(b), and the court

instructed the jury not to consider the evidence to prove that

Carter had a bad character and thus committed the acts charged, but

to consider it only to prove intent or lack of mistake or accident.

16
Gaffney testified that he entered the Church Street house to

execute the search warrant, he found Carter in the northeast

bedroom, standing in the center of the room and jumping toward a

bed. In that bedroom, officers found a plastic medicine bottle

containing a small rock of crack cocaine. In a hole in the floor

near where Carter had been standing, officers found two plastic

bags containing 78.9 grams of crack cocaine. Carter was not found

to be carrying any drugs, and at least one of the other two

occupants of the house had recently been in the area where the

drugs were found. Carter told the officers on that day that he no

longer lived in the house, but bills and mail addressed to him, as

well as clothing his size, were found in the northeast bedroom.

Also in that bedroom was an asthma bottle identical to one in the

possession of Carter, who has asthma.

Evidence against Robert Welch:

Jackson identified Welch in the courtroom and said he went to

school with Welch's brother. Jackson testified that during the

years 1990 to 1992, Welch sold crack cocaine out of the Barnett

Street house, and out of the Volkswagen bus in front of the house,

on behalf of James. Jackson testified that Welch at first sold

crack for co-indictee Thomas, then Welch began selling for James

instead because he could make more money that way. Jackson said he

had seen Welch at James' nightclub, "America's Most Wanted."

Jackson said he never saw Welch with a pager, but he has seen him

with a pistol at the Barnett Street house. Jackson said that in the

17
summer of 1992, he didn't see Welch around the Barnett Street house

because Welch "was in north Mississippi working."

Cedric identified Welch in the courtroom and said he calls

Welch by his nickname, "Gook," but he doesn't know Welch very well.

Cedric said he bought crack at the Barnett Street house in the

years 1990 to 1992, but not from Welch. When Cedric started selling

crack cocaine, he never sold any to Welch, either. Cedric said he

saw Welch at the Barnett Street house "every now and then," to

drink beer or shoot dice, "just kicking around." He never saw Welch

with a firearm, and he never saw Welch involved in a drug

transaction.

Agent Wright testified that none of the undercover cocaine

purchases at Barnett Street involved Welch, although Wright had

seen Welch at the Barnett Street house during the investigation.

Wright said Welch was not identified as being a part of the James

conspiracy until he was arrested in Winston County with co-

indictees Mark Thomas and Houston Chambers.

Officer Mike Perkins of the Louisville, Mississippi police

department testified that he had watched Welch get off the bus in

Louisville, Mississippi seven or eight times in the spring and

early summer of 1992. Louisville is about five hours away from Moss

Point. Welch was being watched in connection with an investigation

into narcotics dealing in the Eialand Plaza Apartments in

Louisville. Officers believed Welch was making trips from Moss

Point to Louisville to deal in crack cocaine. At least seven

18
confidential informants had described Welch to police, and Welch

had been followed from the bus stop to the apartments on several

occasions.

Officer David Porter testified that he and a CI went to the

Eialand Plaza Apartments on June 23, 1992 and attempted to make an

undercover purchase. No purchase was made, but Porter talked to

resident Annie Steele and saw Welch, Thomas and Chambers together,

talking and walking away. Later that evening, officers sent another

confidential informant, Chris White, to the apartments, and White

made two undercover purchases of crack cocaine, one late on June

23, 1992 and the other just after midnight on June 24, 1992.

White, the CI who made the two purchases, testified that

officers contacted him and asked him if he could make an undercover

purchase from Welch and Chambers. White knew that he could do so

because he was a former crack cocaine user and had bought cocaine

from Welch about four or five times before. White described the two

transactions; he said that when he approached that evening to make

the first buy, Welch was standing on the breezeway at the top of

the stairs, and Welch said, "that's Chris, he's cool," and sent

White downstairs to Annie Steele's apartment where Thomas was, and

White purchased a cocaine rock from Thomas. White said he knew

Welch, but he had seen Thomas only once, earlier that same day.

White said he couldn't tell exactly who Welch was addressing when

he said "he's cool," because "it was rather dark under the porch."

The government argues that Welch aided and abetted the drug

transaction by "vouching" for White, who Thomas did not know, so

19
that White could purchase cocaine.

White testified that when he was sent back after midnight to

make a second purchase, Chambers was standing on the stairs near

where Welch had been, and Chambers sold White the second cocaine

rock.

Officer Porter was in a van about 125 feet away monitoring the

transactions via the CI's body wire. During the first transaction,

Porter said he heard White say over the wire that he was

approaching the apartment, then he heard White going up some stairs

and asking someone if he could "get something." Porter testified

that he heard someone say, "he's cool" and instruct White to go

downstairs. White then entered an apartment to make the purchase,

and Perkins couldn't hear anything after that because of loud music

being played in the apartment. White purchased a 0.06-gram rock and

returned. After the first purchase, officers secured a search

warrant for the apartment where the cocaine had been sold. Porter

said the second purchase, of a 0.12-gram rock, was made just after

midnight on June 24. Officer Porter again listened via the body

wire, and determined that neither Welch nor Thomas was present

during the second transaction and that the purchase was made from

Chambers. Shortly after the second purchase, officers executed the

search warrant. As officers entered the apartment, Perkins

testified, Chambers ran out and tried to throw away a bag. Chambers

was arrested, and the bag was retrieved and found to contain 67

rocks (5.14 grams) of crack cocaine. Welch and Thomas were not at

the apartment when the search took place. White, the CI, provided

20
a description of Welch, Thomas and Chambers and the license plate

number of the car they had been seen in earlier in the day. On

information from another Louisville police officer, Perkins went to

Welch's uncle's house, about a mile away from the apartment, to

seek Welch and Thomas. The two were found inside asleep on the

couch. Officers obtained permission from Thomas to search his 1981

Buick Regal parked outside the house, which bore the license number

the CI had provided. The car was actually registered to Thomas'

mother, but Thomas was known to drive it regularly and had received

a traffic citation while driving it that same day. In addition, a

photograph introduced into evidence showed Thomas' Buick Regal on

another date parked under the carport at James' residence on

Griffin Street. Officers searching the car found two loaded pistols

in the glove compartment8 and three bundles of cash totaling $3,000

wrapped with rubber bands and hidden under the car stereo speaker.

The two weapons were dusted for fingerprints, but no identifiable

prints were found on either one. The $20 buy money from the second

purchase was found in Chambers' pocket, and the $20 buy money from

the first purchase was found in Thomas' pocket, along with about

$1,200 in additional cash. No drugs or buy money were found in

Welch's possession. Welch, Thomas and Chambers were all arrested on

state narcotics charges and placed in the Winston County Jail in

8
There was some indication that the glove compartment where
the guns were found was locked. On direct examination, Officer
Perkins stated only that the guns were found "in the glove box,"
but on cross examination, counsel for Welch asked Perkins if he
"found two pistols locked in the glove compartment of Mark Thomas's
vehicle," and Perkins answered, "that's correct."

21
the Louisville area. Perkins then spoke with Agent Wright of the

ATF about Wright's knowledge of Welch, Thomas and Chambers, and

Perkins testified that the Louisville police chose not to pursue

the state charges because a federal investigation was ongoing.

Annie Steele, who lived in the apartment where the two

purchases were made, testified that Welch, Thomas and Chambers were

selling drugs out of her apartment during the day before the police

executed the search warrant. Steele said she had previously been

buying crack cocaine from Welch every time Welch came to town.

Steele estimated that from 1989 to 1992 she bought cocaine from

Welch more than 20 times. She said Welch would come to Louisville

two or three times a month and stay "long enough to get rid of his

stash." Steele said Welch would bring the cocaine to town and sell

it from her apartment and other places in Louisville. She said

Welch would often bring other men, "his partners," with him to

Louisville. Steele said that on June 23, 1992, Welch came over to

Steele's apartment with Thomas and Chambers, who Steele didn't

think she had met before. Steele said Welch asked her if the three

could "hang out for a while, you know, and I told them sure, come

on in." In exchange, the three gave Steele some crack to smoke.

Steele said she knew White (who later became the CI) pretty well

and used to smoke crack with him. On cross-examination, Steele

admitted that when she gave a statement to the police after her

arrest on June 24, she didn't mention that she had bought cocaine

from Welch before.

Jail records show that Welch was in the Winston County Jail

22
from June 24, 1992 to August 12, 1992. Thomas paid a bond and was

released on June 26. Chambers at some point was transferred to

federal custody, but the date this occurred was not clear from the

testimony. Telephone records were introduced into evidence showing

phone calls to and from the telephone at the Barnett Street house

and the Louisville area. On June 22, 1992, an operator-assisted

phone call was made from a telephone in the Eialand Plaza

Apartments to the Barnett Street number. On June 24, 25 and 26,

1992, there were 15 operator-assisted collect phone calls from the

Winston County Jail "inmate area bullpen" to the Barnett Street

number. From July 8 to 13, 1992, five calls were made from the

Barnett Street number to the Winston County Jail. On July 8, 1992,

two additional calls were made to Louisville from the Barnett

Street number, one to the Winston County Circuit Clerk and one to

a G.J. Fulton in Louisville. Winston County records show that Welch

was released on August 12, 1992 when his state charges were

dismissed for "insufficient probable cause." Perkins testified that

he didn't present all of his evidence against Welch at the hearing

on the state charges, because he had already talked to Agent Wright

and planned to defer to the federal prosecution.

Evidence against Ronald McMillian:

Jackson identified McMillian in the courtroom and testified

that during the years 1990 to 1992 he remembers that McMillian --

who Jackson knew only by his nickname, "Bootsie" -- sold crack

cocaine out of the Barnett Street house, and out of the Volkswagen

bus in front of the house, on behalf of James. Jackson identified

23
McMillian and James in part of the ATF surveillance videotape taken

of the Barnett Street house from the woods across the street on

April 30, 1992. In the portion of the video that Jackson viewed,

McMillian is leaning on a fence about 30 feet away with his back

turned to the camera.

Cedric identified McMillian in the courtroom and testified

that he went to school with McMillian's mother and that McMillian's

nickname was "Bootsie." Cedric said that in the years 1990 to 1992

he bought cocaine from McMillian at the Barnett Street house. In

June 1992, Cedric sold cocaine at the house for James and claimed

that McMillian was one of his customers who bought "cookie" amounts

large enough to break up and re-sell at a profit.

Agent Wright testified regarding four undercover crack cocaine

purchases for which McMillian was charged and convicted. The

government did not introduce any testimony from either of the

confidential informants who made the purchases. Instead, Agent

Wright described the transactions from what the CIs told him, from

his own observations through audio and visual surveillance, and

from additional information in the investigation. Wright testified

that on April 23, 1992, the CI, Thomas Walker, bought $110 worth

(1.2 grams) of crack cocaine from Mark Thomas in the front yard of

the Barnett Street house near the Volkswagen van. Wright monitored

the transaction through the CI's body wire, and the transaction was

also tape-recorded. The cassette tape recording and a transcript of

that recording prepared by Wright were introduced into evidence.

The government claims in its brief before this Court that

24
"McMillian could be heard speaking during the sale," but the record

contains absolutely no evidentiary support for this claim. The

government introduced no evidence that might connect McMillian to

the April 23 transaction. The only voices identified on the

transcript were those of Thomas and the CI. No one testified that

McMillian participated in the April 23 transaction, aided that

transaction in any way, or was even present at the Barnett Street

house that day. However, McMillian was charged and convicted in

Count 3 of the indictment in connection with the April 23 sale.

Agent Wright testified that on April 28, 1992, two CIs, Walker

and Victor Upshaw, went to the Barnett Street house and purchased

1 gram of crack cocaine from Thomas. The transaction was monitored

by Wright via a body wire and was tape-recorded, and Wright

prepared a transcript of the tape. Wright testified that he also

watched this transaction from across the street in the woods and

that he saw McMillian at this transaction, but the only voices

identified on the transcript are those of Thomas, Polk and the two

CIs. McMillian, along with Polk, was originally charged in Count 4

in connection with the April 28 transaction, but the trial court

granted McMillian's and Polk's motions for acquittal on that count.

Wright testified that on the morning of April 30, 1992, the CI

Walker went to the Barnett Street house to make a purchase, but

found no one there. At about 5 p.m. the same day, Wright said,

Walker went back to the house to attempt a purchase while Wright

listened by wire and videotaped the transaction from across the

street. The April 30 transaction was also tape-recorded and

25
transcribed. According to the transcript and to Wright's testimony,

McMillian and a person named "Julio" or "Toot" conducted the

transaction. The three men went inside the house, and Wright

continued to listen to the transaction, although he could no longer

watch. On the tape and transcript, McMillian asks the CI, "You

ain't got no mic's or nothing, do you?" Walker answers, "Nall

brother, I'm cool," and McMillian responds, "You know I got to make

sure." Wright testified that at this point McMillian searched the

CI to look for microphones, but on cross-examination Wright

admitted that he did not witness the search because the men were

inside the house at this point. Wright also testified that the pat-

down of the CI's body could be heard over the wire. The CI did not

testify. On the tape, after Julio/Toot and Walker discuss the price

for the cocaine, the CI said, "I don't blame you. I do the same

thing, search them when they come up on me. I say, hey, let me

check you out, brother." In response, McMillian says, "Uh." Wright

testified that Walker bought $200 worth (2.4 grams) of crack

cocaine from Julio/Toot at the April 30 transaction. The

surveillance videotape taken on April 30 was also played for the

jury and introduced into evidence. The events described in Wright's

testimony are difficult to identify from viewing the video itself,

because of erratic movements of the camera, obstruction from grass

and trees and the distance from which the events were viewed. The

video generally shows people, including the CI, coming and going

from the Barnett Street house in the morning, and Wright testified

that the people would leave after finding no one there to sell

26
cocaine. On the videotape, a woman calls out for either "Spring" or

"Frank." Wright and Jackson identified McMillian and James as being

present in the video. Wright testified that the video shows the CI

returning at 5 p.m. and talking to McMillian in front of the house,

then McMillian goes into the back door of the house while the CI

waits outside. Then, Wright testified, the CI talks with Julio/Toot

and Thomas, then all three men go inside the house, where Wright

testified that McMillian performed the search. After the CI leaves

with his cocaine, Wright testified, McMillian returns to his

position in the Volkswagen van. Later, a woman who came to the

house earlier when no one was home drives up, walks over to the

van, then gets into her car and leaves. McMillian's counsel argued

that, at most, the video shows McMillian engaged in such innocent

acts as leaning on a fence, getting into the van and getting out of

the van. McMillian was charged and convicted in Count 5 in

connection with the April 30 transaction.

Wright also testified about the June 16, 1992 transaction,

described above with reference to Carter, in which McMillian and

another man in Carter's car led the confidential informants down

the block to 4501 Church Street, where the CIs purchased $300 worth

(4 grams) of crack cocaine. That transaction was monitored via body

wire, and Wright had the video camera with him that day, but no

tape recording, transcript or videotape of the June 16 transaction

was entered into evidence. Wright said McMillian explained to the

CI that the transaction was moved to the Church Street house

because the police had been watching operations at the Barnett

27
Street house. Again, the CI did not testify. McMillian, along with

Carter, was charged and convicted in Count 6 in connection with the

June 16 transaction.

Wright testified that on June 18, 1992, the CI Walker again

went to the Barnett Street house to make an undercover purchase.

Wright testified that McMillian "directed Thomas Walker to an

unidentified black male" to make the purchase, although this is not

apparent from the tape or transcript. Wright said that Walker

purchased $250 worth (2.6 grams) of crack cocaine, and the

transaction was tape-recorded and transcribed by Wright. The voices

of McMillian, Thomas and "Julio" are identified on the transcript.

In the June 18 transaction, the man identified on the transcript as

McMillian was present and talking to the CI about the June 16 sale

at the Church Street house and asking how much Walker made from

that piece of cocaine. The transcript included the following

exchange:

Walker (CI): I went around to the other place man.
McMillian: Where?
Walker: Over on, what that street down there?
McMillian: Church Street.
Walker: Yeah, where we went the last time.
McMillian: Oh, oh.
Walker: You back over here?
McMillian: Yeah man.

On the tape, the man identified on the transcript as "Julio" names

the price and appears to make the actual sale. McMillian was

charged and convicted in Count 7 in connection with the June 18

transaction.

Agent Wright explained how officers were later able to

identify McMillian as the man the CI had dealt with and the person

28
Wright had seen while performing surveillance. Around August 6,

Wright recognized McMillian in a car and asked a marked police car

to stop him and ask for identification. Wright testified that the

identification, as well as a license plate check on the car,

confirmed McMillian's identity.

Sufficiency on Conspiracy Count

We hold that the evidence was sufficient to support the jury's

conviction of Polk in Count 1 for conspiracy to possess cocaine

with the intent to distribute. Jackson testified that Polk was a

trusted seller of crack cocaine for James. Three witnesses,

Jackson, Cedric and Agent Wright, identified Polk in a photograph

holding a pistol and standing next to James while James held a pile

of money. Wright's testimony and the audiotape showed that Polk was

present at a crack cocaine transaction on April 28, 1992 and talked

about the fact that no one had bought any cocaine the night before.

We hold that the evidence was sufficient to support the jury's

conviction of Carter in Count 1 for conspiracy to possess cocaine

with the intent to distribute. Jackson and Cedric both testified

that Carter sold crack cocaine at the Barnett Street house, at the

Church Street house and elsewhere. Jackson testified that Carter

worked for James and that James bought Carter a car. Carter's

residence and his vehicle were involved in a crack cocaine

transaction on June 16, 1992. Carter's car was photographed in

front of James' residence along with Thomas' car. The jury saw a

pager service agreement bearing Carter's name and address, showing

his place of business as James' nightclub and his phone number as

29
the Barnett Street number.

We hold that the evidence was sufficient to support the jury's

conviction of Welch in Count 1 for conspiracy to possess cocaine

with the intent to distribute. Jackson testified that Welch sold

crack cocaine for Thomas, then for James. Steele testified that

Welch would travel to Louisville with his "stash" and sell crack to

her. White also testified that he bought crack from Welch in

Louisville.9 Agent Wright saw Welch at the Barnett Street house on

several occasions, and Cedric confirmed that Welch sometimes "hung

out" there. Welch clearly associated with Thomas, Chambers and the

other defendants. The jury could have reasonably inferred from the

phone records that, after his arrest in Louisville, Welch called

the Barnett Street house from jail.

We hold that the evidence was sufficient to support the jury's

conviction of McMillian in Count 1 for conspiracy to possess

cocaine with the intent to distribute. Both Jackson and Cedric

testified that McMillian sold crack at the Barnett Street house,

and Jackson testified that McMillian worked for James. Agent

Wright's testimony, the audiotapes and the videotape were evidence

that McMillian participated in at least three sales of crack at the

Barnett Street house.

9
Welch objects, for the first time on appeal, to the testimony
by Jackson, Steele and White that he had in the past sold crack
cocaine in Moss Point and Louisville and had possessed a gun at the
Barnett Street house at some unspecified date prior to June 1992.
Welch concedes that he did not object to this testimony at trial,
but argues that its admission was plain error under Rule 404(b). We
disagree. The testimony was not Rule 404(b) evidence, but was
introduced under Rule 401 as relevant evidence of Welch's
participation in the charged conspiracy. No plain error was shown.

30
 Sufficiency on Substantive Possession Counts

A: Carter - Count 6

Even though we today affirm Carter's conviction for

conspiracy, we conclude that the evidence was insufficient to

support the jury's conviction of Carter for participating in or

aiding and abetting the June 16, 1992 crack cocaine transaction

charged in Count 6.

Notwithstanding the inferences we must draw in favor of a

guilty verdict, we reiterate that the burden of proof in this

criminal case was on the government. The government must prove

that the defendant was guilty beyond a reasonable doubt, not merely

that he could have been guilty. United States v. Crain, 33 F.3d

480, 486 (5th Cir. 1994), cert. denied sub nom. Watkins v. United

States, 115 S. Ct. 1142 (1995); United States v. Sacerio, 952 F.2d

860, 863 (5th Cir. 1992). The only piece of evidence that could

link Carter to the June 16 transaction is that a car registered to

Carter transported McMillian and another unidentified man to the

buy location (a house on Church Street where Carter lived along

with two other people). A reasonable jury could not infer from this

fact that Carter, on June 16, 1992, intentionally possessed cocaine

with the intent to distribute it. The government did not claim at

trial, and does not argue on appeal, that Carter was the other man

in the car or was otherwise present at the June 16 transaction. In

fact, the government admitted that the confidential informant

initially misidentified the car's other occupant as Terry Anthony

Austin, Carter's brother, who was incarcerated at the time. The

31
government thus did not try to prove or even suggest who the

"unidentified man" was.10 The confidential informant who

participated in the transaction did not testify. Further, the

government did not argue or introduce any evidence tending to prove

that Carter knew about or consented to the use of his car or

residence for a drug deal on that day. No evidence, other than the

movements of the car, was presented to show that Carter himself was

present anywhere that day, either at the Barnett Street location,

10
We note with disapproval that counsel for Derrick Carter
attempts to mislead this Court in her brief and in oral arguments
by stating that the government's evidence showed Austin to be the
driver of the car. In fact, the government's direct examination of
Wright indicated only that McMillian was in the car, and then
Wright admitted on cross-examination by McMillian's counsel that
the CI made an initial, incorrect determination that an
unidentified man in the car with McMillian was Terry Austin:

Q: And at one point in time, that unidentified black man was, in
fact, identified, wasn't he?
A: Yes, he was.
Q: And he was identified as Terry Austin -- Terry Anthony Austin;
is that correct?
A: That's correct.
Q: And he was identified by this CI, right?
A: That's correct.
Q: And what did your investigation reveal about the whereabouts
of Terry Austin at this particular time?
A: He was incarcerated at the time.
Q: Okay. So Terry Austin wasn't even there, it was impossible for
him to have been there?
A: That's correct.

Despite this testimony, which showed that it was physically
impossible for Terry Austin to have been in that car on June 16,
1992, Derrick Carter's counsel argues in her original and reply
briefs that the car was "being driven by the Defendant Terry
Anthony Austin," that "no evidence was put forth to show ... that
Appellant Carter had any guilty knowledge of the activities of
McMillian or Austin," and that "Austin is Appellant Carter's
brother; for him to have borrowed the Appellant Carter's car is
probably the rule rather than the exception."

32
the Church Street location, or at James' residence, where Carter's

car was seen and photographed later on the evening of June 16. As

we stated in United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th

Cir. 1993), cert. denied sub nom. Rivas-Cordova v. United States,

114 S. Ct. 1865 (1994), "the jury's conclusion that the government

proved [Carter]'s guilt beyond a reasonable doubt was unreasonable

as a matter of law." As in United States v. Onick, 889 F.2d 1425,

1429 (5th Cir. 1989), we suspect that the jury "must have

speculated [Carter] into a conviction," piling "inference upon

inference," which it cannot do. For these reasons, we must reverse

Carter's conviction in Count 6 for possession with the intent to

distribute.11

B: Welch - Counts 8 & 9

We hold that the evidence was sufficient to convict Welch of

possession with intent to distribute in Count 8, which involved the

11
Because it was unreasonable for the jury to have inferred
Carter's guilt in Count 6 from the evidence presented regarding the
events of June 16, 1992, it appears likely that the jury instead
improperly considered the evidence introduced under Rule 404(b).
The jury appears to have considered the evidence of Carter's "other
crime, wrong or act," at the time the Church Street house was
searched in July 1993 "in order to show conformity therewith,"
i.e., to infer that Carter had possessed crack cocaine a year
earlier on June 16, 1992. Such an inference is expressly prohibited
under the language of Rule 404(b) and the district court's
instruction to the jury. See, e.g., United States v. Willis, 6 F.3d
257, 261 (5th Cir. 1993).
Because we reverse Carter's substantive possession conviction
in Count 6 for insufficient evidence, we need not decide whether
the district court abused its discretion by admitting evidence of
the 1993 search of the Church Street house. With regard to Carter's
conspiracy conviction in Count 1, we hold that the evidence was
sufficient to prove conspiracy without regard to the Rule 404(b)
evidence, so any error in admitting that evidence would be harmless
with regard to that count.

33
first of the two June 1992 cocaine sales in Louisville, Mississippi

at the Eialand Plaza Apartments. In that first, pre-midnight sale,

charged in Count 8, the jury could have inferred that Welch aided

and abetted the transaction by "vouching" for Chris White and

telling Thomas "he's cool," allowing White to purchase the cocaine

from Thomas. However, the second, post-midnight sale, charged in

Count 9, was made to White by Chambers, and the uncontradicted

evidence showed that Welch was not present at the transaction, or

even at the apartment, and no evidence showed that Welch assisted

the Count 9 transaction in any way. Therefore, we find the evidence

insufficient to support the jury's conviction of Welch in Count 9,

and that count is therefore reversed.

C: McMillian - Counts 3, 5, 6 & 7

We also find that the evidence was insufficient to support the

jury's conviction of McMillian in Count 3 for the April 23, 1992

transaction. On that day, as shown by the tape recording, the

government-prepared transcript and Agent Wright's testimony, an

undercover officer purchased 1.2 grams of crack cocaine from Mark

Thomas. The government did not present any evidence that McMillian

participated in or was present at the camp during that particular

purchase, nor did the government even attempt to argue that

McMillian aided or abetted the April 23 transaction in any way. As

with Carter's conviction in Count 6 and Welch's conviction in Count

9, "the jury's conclusion that the government proved [McMillian]'s

guilt beyond a reasonable doubt was unreasonable as a matter of

law." Velgar-Vivero, 8 F.3d at 241. As we stated in a recent case,

34
 "[a]lthough the strict nature of this [sufficiency of the
evidence] standard demonstrates our reluctance to
interfere with jury verdicts, this case is an example of
why courts of appeal must not completely abdicate
responsibility for reviewing jury verdicts."

Crain, 33 F.3d at 487 (quoting United States v. Ragan, 24 F.3d 657,

659 (5th Cir. 1994)). For these reasons, we reverse McMillian's

conviction in Count 3 for possession with the intent to distribute.

However, we find that the evidence, including Agent Wright's

testimony, the audiotapes and the videotape, was sufficient to

convict McMillian in connection with the transactions in Counts 5,

6 and 7. With regard to the April 30, 1992 transaction, McMillian

was seen and videotaped at the Barnett Street house that day, and

his statements on the audiotape indicate that he searched the CI

for microphones in connection with the drug purchase. On June 16,

1992, Agent Wright, listening on the body wire, heard McMillian

tell the undercover purchaser to follow him to the Church Street

house, where the sale was completed. On June 18, 1992, McMillian's

voice can be heard on the audiotape during the transaction,

discussing the other sale "last time" at the Church Street house

and asking how much profit the buyer had made on that purchase. We

find the evidence sufficient to support McMillian's convictions on

these counts.

Sufficiency on Welch's Firearm Count

Finally, we find that the evidence was insufficient to support

Welch's conviction in Count 10 for using or carrying a firearm

during and in relation to a drug trafficking crime (the June 1992

Eialand Plaza transactions), in violation of 18 U.S.C. § 924(c),

35
and/or aiding and abetting Chambers and Thomas in doing so. The gun

in question, a .38-caliber semi-automatic pistol, was found along

with another gun in the glove compartment of Thomas' car, which

police found parked outside Welch's uncle's house while Welch and

Thomas were inside the house sleeping. The government made no

attempt to prove that Welch was ever in actual possession of the

gun or used it. No fingerprints were found on the gun. Proof of

actual use is not necessary under Section 924(c), but if such use

is not shown, the government must prove that Welch knew about the

firearm and that Welch had access to the firearm for protection in

connection with his drug trafficking offense. United States v.

Willis, 6 F.3d 257, 264 (5th Cir. 1993). The government has not met

its burden of proof on this count. There was no evidence suggesting

that Welch had any control over the car where the gun was found. No

one testified that Welch had ever been inside Thomas' car, although

the jury could have inferred that Welch rode in the car from the

Eialand Plaza Apartments to the house where they both later were

found asleep. Even if the jury could have inferred that Welch had

any control over Thomas' car, this control alone would not have

automatically connected him with the gun in the glove compartment.

See United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993),

cert. denied, 114 S. Ct. (1994); United States v. Ford, 993 F.2d

249, 252 (D.C.Cir. 1993) ("[I]n cases in which contraband or

firearms are discovered in a place occupied by more than one

person, the Government must establish 'the likelihood that in some

discernible fashion the accused had a voice vis-a-vis' the items in

36
question."). We have found constructive possession in "joint

occupancy" cases only when there was some evidence supporting at

least a plausible inference that the defendant had knowledge of and

access to the weapon or contraband. See, e.g., United States v.

McKnight, 953 F.2d 898, 902 (5th Cir.)(weapon was found in plain

view), cert. denied, 504 U.S. 989 (1992). In the instant case, the

weapon was not in plain view and there were no other circumstantial

indicia that established that Welch even knew about the weapon.

Nor was there any testimony or evidence that the pistol was

connected in any way to the Eialand Plaza drug transactions. See

United States v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989)(noting

that under § 924, "the government is shouldered with the burden of

establishing some relationship between the firearm [] possessed and

the predicate drug trafficking offense. ... [S]omething more than

strategic proximity of drugs and firearms is necessary to honor

Congress' concerns."). The government in this case did not even

prove "strategic proximity." The Count 8 sale took place in an

apartment, and the government did not introduce any testimony

tending to show whether Thomas' car was even parked at the

apartment complex during the drug transaction, or if it was, how

far away it was parked from the apartment where the transactions

took place, or whether the pistol was even in the car at that

point. We have reversed Welch's cocaine possession conviction for

the Count 9 transaction, but we note that there is even less

evidence to connect the firearm with that sale; at that time the

car was already across town parked outside Welch's uncle's house,

37
with its owner, Thomas, asleep inside. For these reasons, we find

the evidence insufficient to support the jury's conviction of Welch

for the firearms offense in Count 10, and that count is therefore

reversed.

Use of Audiotapes and Transcripts

Four audio recordings of the undercover cocaine purchases were

played for the jury at trial, and the jury was given government-

prepared transcripts of the taped conversations during the playing

of the tapes. The jury was allowed to have the tapes, but not the

transcripts, during deliberations. The court instructed the jury:

"I'm going to allow you to use the transcript when you
listen to the tapes, solely as an aid or an assistance to
assist you in following what's on the tapes. However, the
evidence is on the tape. You understand? If what's on the
transcript is at variance from what you hear on that
tape, then it is what you hear on the tape that
controls."

Polk, Carter and McMillian claim on appeal that the recordings were

of such poor quality that the jury could not possibly understand

them, and they argue therefore that the government-prepared

transcripts took on an improper evidentiary role. The appellants

also claim that the tapes were not properly authenticated pursuant

to Federal Rule of Evidence 901(b)(1) and (b)(5), because the CIs

who were present at the transactions did not testify to identify

the appellants' voices on the recordings.

When seeking to introduce a sound recording in a criminal

prosecution, the government bears the burden of going forward with

foundation evidence demonstrating that the recording as played is

an accurate representation of the conversation or other sounds at

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issue. United States v. Stone, 960 F.2d 426, 436 (5th Cir. 1992).

This Circuit has given the district court broad discretion to

determine whether this foundation has been met. Stone, 960 F.2d at

436; United States v. Wilson, 578 F.2d 67, 69 (5th Cir. 1978);

United States v. Mendoza, 574 F.2d 1373, 1378 (5th Cir.), cert.

denied, 439 U.S. 988 (1978). The Federal Rules of Evidence provide

that the requirement of authentification "is satisfied by evidence

sufficient to support a finding that the matter in question is what

its proponent claims." FED. R. EVID. 901(a); United States v. Lance,

853 F.2d 1177, 1181 (5th Cir. 1988). To illustrate acceptable means

of authenticating evidence, Rule 901(b) lists testimony of a

witness with knowledge and, for identifying a voice, an "opinion

based on hearing the voice at any time under circumstances

connecting it with the alleged speaker." FED. R. EVID. 901(b)(1),

(5); Lance, 853 F.2d at 1181. In the trial below, ATF Agent Wright

testified that for each recorded transaction he equipped the

confidential informant with the electronic monitoring equipment and

that he monitored each transaction over the CI's body wire as it

was occurring. During the April 28 transaction, for example, Wright

testified that he was performing surveillance from the woods across

the street and that he personally viewed McMillian and Polk at the

recorded transaction and watched them as he simultaneously listened

to their voices over the wire. During the April 30 and June 16

transactions, Wright testified that he was again stationed in the

woods across the street and watched McMillian participate in at

least part of each drug transaction while simultaneously listening

39
to the voices over the wire. Wright testified that he prepared the

government transcripts after listening to each tape recording

numerous times. He testified that each transcript was an accurate

representation of the conversation he had heard over the wire. In

light of this testimony, we hold that the tape recordings were

sufficiently authenticated.

The appellants also claim that the taped conversations were so

unintelligible that they could not prepare their own transcripts or

even effectively challenge the accuracy of the government's

transcripts. However, after carefully listening to the four tape

recordings at issue in this case, we find no abuse of discretion in

the district court's decision to admit them into evidence. While

some portions of the recordings are inaudible or unintelligible as

the appellants claim, much of the conversations can be heard

clearly and may be followed on the government's transcripts. Cf.

Wilson, 578 F.2d at 69. We therefore conclude that the quality of

the recordings was not so poor that the appellants were precluded

from making an effective challenge to the government transcripts,

and we find no abuse of discretion in the court's use of the

transcripts. The court correctly instructed the jurors that if they

perceived any difference between the tapes and the transcripts,

what they heard on the tapes should control. The actual content of

the taped conversations was therefore a matter for the jury to

determine. Wilson, 578 F.2d at 70 (citing United States v. Onori,

535 F.2d 938, 948-49 (5th Cir. 1976)).

40
 Evidence of Separate "Laurel Conspiracy"

The trial court allowed, over objection, evidence of an

attempted five-kilogram cocaine transaction by James on July 24,

1992. The jury was instructed both before and after the testimony

that the evidence related only to James and could not be used

against the other defendants. Polk and McMillian claim on appeal

that this evidence was so overwhelming that such instructions did

not cure the "spillover" prejudice to them, and that they should

have been granted a new trial. Such evidentiary rulings are

reviewed for abuse of discretion. United States v. Stouffer, 986

F.2d 916, 924 (5th Cir.), cert. denied, 114 S. Ct. 115 (1993). The

jury was properly instructed to use the evidence only against

James, and juries are presumed to follow their instructions. United

States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied sub

nom. Nunn v. United States, 114 S. Ct. 266 (1993). We find no abuse

of discretion.

Requests for Severance

Carter and Welch claim on appeal that the district court erred

in denying their motions to sever their trials from that of the

other defendants, especially James. They claim that joinder was

improper because of the prejudicial "five-kilogram" evidence

admitted against co-defendant James, and that therefore the joint

trial with James caused them great prejudice.

The initial joinder of Polk, Carter, Welch and McMillian with

James for trial was legitimate because they were charged with

having conspired with each other. United States v. Thomas, 12 F.3d

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1350, 1363 (5th Cir.), cert. denied sub nom. Sanchez v. United

States, 114 S. Ct. 1861 (1994); United States v. Elam, 678 F.2d

1234, 1250 (5th Cir. 1982). The district court's decision of

whether to grant a severance is reviewable only for an abuse of

discretion. United States v. Stotts, 792 F.2d 1318, 1321 (5th Cir.

1986), cert. denied, 493 U.S. 861 (1989); see also United States v.

Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980) ("To establish an

abuse of discretion of the district court, a defendant must show

that he received an unfair trial and suffered compelling prejudice

against which the trial court was unable to afford protection.").

An appellant must show something more than the fact that a separate

trial might offer him a better chance of acquittal. United States

v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. 1981). In this case,

the government introduced sufficient evidence to demonstrate that

Carter, Welch and the other appellants were guilty of conspiracy.

Moreover, even if some risk of prejudice existed, the district

court properly instructed the jury to limit evidence to the

appropriate defendant. We find no abuse of discretion in the

district court's refusal to grant severance.

CONCLUSION

For the reasons stated above, we AFFIRM the convictions of

appellants Polk, Carter, Welch and McMillian in Count 1, of

appellant McMillian in Counts 5, 6 and 7, and of appellant Welch in

Count 8. We find that the evidence was insufficient to support the

42
convictions of appellant McMillian in Count 3, of appellant Carter

in Count 6 and of appellant Welch in Counts 9 and 10, and we

therefore REVERSE those convictions.

We see no need to remand the cases of appellants McMillian and

Carter for resentencing because their counts of conviction were

grouped under the Sentencing Guidelines and their sentences were

set to run concurrently.12 However, because the firearms offense we

reverse in Count 10 was set to run consecutively, Welch's case must

be remanded to the district court for resentencing in accordance

with this opinion.

12
The reversal of the substantive cocaine possession
convictions does not affect the district court's computation of the
quantity of cocaine attributable to each defendant, because the
court determined quantity from the evidence on the conspiracy
count, which we affirm in this opinion. Noting that Jackson had
testified that James' workers at the Barnett Street house sold a
kilogram every two weeks and that the conspiracy was alleged to
have lasted about two years, the court found that each conspirator
could be held responsible for 48 kilograms of cocaine. However,
"out of a sense of justice" and "to be fair under the
circumstances," the court halved that amount and held each
appellant responsible for 24 kilograms of cocaine at sentencing.
The correctness of this calculation under the Sentencing Guidelines
was not appealed and is thus not before us.
wjl\opin\93-7605.opn
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