United States v. Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 95-5515
TYRONE LAMONT SMITH, a/k/a Blue,
a/k/a Tyrone Eady,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 95-5516
JOSEPH EDWARDS MONROE, a/k/a
Slim,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Henry C. Morgan, Jr., District Judge, sitting by designation.
(CR-94-41)

Argued: April 1, 1996

Decided: June 4, 1996

Before HALL and MOTZ, Circuit Judges, and BUTZNER, Senior
Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: David Brian Franzen, FEIL, PETTIT & WILLIAMS,
P.L.C., Charlottesville, Virginia, for Appellant Smith; Sa'ad El-Amin,
EL-AMIN & CRAWFORD, Richmond, Virginia, for Appellant Mon-
roe. Stephen Urban Baer, Assistant United States Attorney, Char-
lottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants, Tyrone Lamont Smith and James Edwards Monroe,
appeal their convictions and sentences for conspiracy to possess with
intent to distribute or to distribute more than fifty grams of cocaine
base (crack), in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). Mon-
roe also appeals his conviction and sentence for possession with intent
to distribute more than five grams of cocaine base, in violation of the
same statutes. Finding no reversible error, we affirm.

I.

Appellants' first argument is that there was a "fatal" variance
between the allegations in the indictment and the evidence at trial.
Specifically, they maintain that while the indictment alleged a single
conspiracy, the evidence at trial indicated that there were multiple
conspiracies. At trial, the government bore the burden of proving the
existence of the single conspiracy charged in the indictment. United
States v. Hines, 717 F.2d 1481, 1489 (4th Cir. 1983), cert. denied, 467
U.S. 1214 (1984). See also, United States v. Barsanti, 943 F.2d 428,
439 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992); United States
v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). The existence of a single

2
conspiracy is a question of fact for the jury. United States v. Banks,
10 F.3d 1044, 1051 (4th Cir. 1993), cert. denied , 114 S. Ct. 1850
(1994); Leavis, 853 F.2d at 218 (citing United States v. Urbanik, 801
F.2d 692, 695 (4th Cir. 1986)).

Determination of whether the government has proven a single con-
spiracy is basically a "special version" of a sufficiency of evidence
evaluation. Banks, 10 F.3d at 1051. Thus, in reviewing a conviction,
we merely determine

whether any rational trier of fact could have found the
essential elements of the [conspiracy here charged in the
indictment] beyond a reasonable doubt, and do so by assess-
ing the evidence in the light most favorable to the Govern-
ment, assuming its credibility, drawing all favorable
inferences from it, and taking into account all the evidence,
however adduced.

Banks, 10 F.3d at 1051 (internal citations and quotations omitted)
(alteration in original).

In determining whether there is evidence of a single conspiracy, as
opposed to multiple conspiracies,

the focal point of the analysis is whether the alleged co-
conspirators were united in a common unlawful goal or pur-
pose. Of principal concern is whether the conduct of the
alleged co-conspirators, however diverse and far ranging,
exhibits an interdependence. In other words, of principal
concern is whether the activities of alleged co-conspirators
in one aspect of the charged scheme were necessary or
advantageous to the success of the activities of co-
conspirators in another aspect of the charged scheme, or the
success of the venture as a whole.

United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990), cert.
denied, 502 U.S. 952 (1991) (citations omitted). See also United
States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991), ("A single con-
spiracy exists where there is one overall agreement,. . . or one general

3
business venture. Whether there is a single conspiracy depends upon
overlap of the main actors, methods and goals"), cert. denied, 503
U.S. 936 (1992)(citations and internal quotations omitted). With these
principles in mind, we turn to the evidence in this case.

A.

Sometime prior to the summer of 1993 (exactly when is unclear
from the record), Barry Lampkins brought appellant Smith to Char-
lottesville, Virginia to sell drugs. Lampkins and Smith knew each
other from the Bronx, having lived in the same apartment building on
Colgate Avenue while growing up. The two worked together, obtain-
ing drugs (primarily crack cocaine) from New York and distributing
the drugs in Charlottesville. In addition to selling drugs on the street,
specifically the "drug strip" on Page Street, Smith and Lampkins
would trade crack to addicts in exchange for the use of their homes
for selling crack. One of these addicts was John Turner, who lived in
a boarding house on West Street. Another was Gloria Newman, who
lived at 772 Ridge Street. Smith and Lampkins also sold crack
through the use of "runners," drug users who would sell to fellow
users in exchange for "samples" of the product. Milton Dickerson was
one of their runners.

In the summer of 1993, Lampkins recruited Tahir Branch to come
to Charlottesville from New York to sell drugs. Branch, who also
lived in the Colgate Avenue building as a child, knew Smith as well
as Lampkins. Branch and his friend "Juice" took the bus to Char-
lottesville and met Lampkins at Gloria Newman's house on Ridge
Street. Branch testified that during the summer of 1993, he witnessed
Dickerson working as a "runner" for Smith and Lampkins.

Apparently, shortly thereafter, Smith and Lampkins had a "falling
out" over money. Lampkins' step-father had failed to deliver a ship-
ment of drugs, and Lampkins was unable to repay Smith for the ship-
ment. Both men continued to operate in Charlottesville for some
period of time after this quarrel.

Meanwhile, Lampkins directed Branch and Juice to sell marijuana
at first and crack when the marijuana ran out. Branch and Juice sold
on Page and Paoli Streets, while Lampkins sold out of the boarding

4
house on West Street. At the end of a month, Lampkins paid Branch
$400 and Branch decided not to work for Lampkins any more because
he did not like the way Lampkins ran things and did not think that
Lampkins had paid him enough. There were also rumors that Lamp-
kins was using drugs. Branch went back to New York after the month.

"Several months" later, while in New York, Smith asked Branch if
he wanted to go back to Charlottesville with him, and Branch agreed.
Smith and Branch took a bus from New York, transporting two "G
packs" ($2000 worth) of crack cocaine supplied by Smith. In Char-
lottesville, Smith and Branch stayed at the house of a drug user
named Robert, in the 700 block of Ridge Street, just up the block
from Gloria Newman's house. They gave Robert small amounts of
money as well as crack for letting them stay there. Smith and Branch
sold the crack across town on Page and Paoli Streets. Danny Wil-
liams, a user who lived on Paoli Street, worked as a"runner." Smith
told Branch he could also go and sell out of the house of Pamela Pow-
ell, another user, who lived on Hardy Drive. After they had sold all
the crack (in about five days), Smith paid Branch around $400. They
went back to New York to "re-up," that is, to use the $2000 they had
made to buy more cocaine to convert to crack and bring back to Char-
lottesville.

Subsequently, on several occasions, Branch traveled to Charlottes-
ville alone, each time with 5 "G packs" of crack. Smith told him when
to go and provided him with crack and either bus or train fare. Branch
stayed at Robert's house, on Ridge Street, and kept the money from
the sale of the crack at Gloria Newman's house, also on Ridge Street.
He sold the crack at Page and Paoli Streets. After selling all the crack,
Branch returned to New York and gave Smith the money he had
made. Smith usually paid him between $400 and $600. On one trip,
Smith gave Branch a key and told him to stay with his friend, Chrissy
Willis, who lived in the Fifteenth Street Apartments. Branch origi-
nally went back to Ridge Street, where he felt more comfortable, but
then went to Chrissy Willis' house because Lampkins and his "crew"
were staying at Gloria Newman's house, and Branch did not think it
was safe to stay on Ridge Street too.

One of Branch's trips occurred while Smith was in jail in Atlantic
City. This trip was conducted in the "same exact way" as the previous

5
trips. Branch visited Smith in jail, and Smith told him that when he
got out, he was going to "step up" the operation and they would both
make a lot of money. After Smith got out of jail, he brought appellant
Monroe into the operation. Smith, Monroe, and Branch all took a bus
to Charlottesville, transporting "two large cookies" of crack, worth
about $20,000. They stayed at Chrissy Willis' house (now on Paoli
Street, her old building having burned down). At Chrissy Willis'
house, Smith cut up the "cookies" and Monroe recooked the
"crumbs." Danny Williams and his girlfriend, Mary Etta Brown, had
moved to Preston Street, and the majority of the $20,000 worth of
crack was sold from their house. Smith, Branch, and Monroe worked
in "shifts," each selling one "G pack" at a time.

Smith, Branch, and Monroe made a second trip to Charlottesville
with $20,000 worth of crack, this time accompanied by a woman
named Envogue. They sold the drugs using the same procedure as
before. At the end of May, 1994, Branch and Monroe made a third
trip with $20,000 worth of crack, accompanied by a different woman.
Smith did not go on this trip because he had to go to a family reunion.
On May 31, 1994, police raided Danny Williams' apartment. Branch
and Monroe were running down the hall when police broke down the
door. They were found "hiding" in the bathroom, along with a cellular
phone and the remains of a "G pack" of crack. The police found $798
on Tahir Branch's person.

B.

Appellants argue that the "falling out" between Smith and Lamp-
kins and the subsequent competition between them"clearly estab-
lished" multiple conspiracies, rather than a single, ongoing
conspiracy. As this court has noted, however, the fact that drug deal-
ers "may sometimes, or even always, compete for supplies or custom-
ers in serving [the] market does not on that account alone disprove the
existence of a single conspiracy to achieve the overall results of their
several efforts." Banks, 10 F.3d at 1054; United States v. Johnson, 54
F.3d 1150, 1154-55 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995).
The jury could have found from the evidence that despite their "fall-
ing out," Lampkins and Branch did not completely disassociate from
each other. Appellants point to Branch's testimony that, at one point,
when he was considering working for Smith, he was threatened by

6
people working for Lampkins. While holding a shotgun, they told him
that if he was working for Smith, he was "going against the grain,"
because he had first come to Charlottesville with Lampkins, and that
he should not come down (to Charlottesville) anymore. This testi-
mony clearly indicates competition, but not necessarily separate con-
spiracies. Branch further testified that he later talked to Lampkins
about this incident and Lampkins told him "They took it as you going
against the grain. That's how they took it. I can't stop them from
doing any actions." Still later, Lampkins apologized to Branch about
the incident and told him everything was "cool." Although this evi-
dence is not overwhelming, based on it, the jury could have con-
cluded that Lampkins and his "crew" and Smith and his "crew" were
but two competing branches of the same overall conspiracy.

Additionally, even if Lampkins did leave the organization entirely
to start his own organization, the evidence supported the conclusion
that Smith continued to run the operation that Lampkins and Smith
had once run together. After the "falling out" with Lampkins, Smith
continued transporting crack into Charlottesville and selling it at Page
and Paoli Streets, as he had while working with Lampkins. He contin-
ued using "runners" to sell the crack, and continued selling out of the
houses of drug users, compensating them by giving them crack. He
used Tahir Branch to transport and sell the crack, and until he
"stepped up" the operation, paid Branch approximately what Lamp-
kins had paid him. At first, Smith had Branch stay on Ridge Street
(although not at Gloria Newman's house), and then go across town
to sell at Page and Paoli. He also had Branch store his money at Glo-
ria Newman's house. Initially, Branch took the bus to Charlottesville,
as he had when he was brought in by Lampkins. Each time Branch
ran out of crack to sell, he went back to New York to "re-up." Subse-
quently, certain changes were made, but the same overall operation
continued. Branch began staying at Chrissy Willis' house instead of
on Ridge Street, but continued selling on Page and Paoli Streets,
using Danny Williams as a runner. Then Smith brought Monroe into
the operation, and they began selling larger quantities of crack. They
sold most of the crack from Danny Williams' house on Preston Street
rather than on the street. They kept the money hidden at Chrissy Wil-
lis' house. Smith began paying Branch more for his efforts ($1000
instead of $400-$600). Based on this evidence, the jury could have

7
concluded that Smith continued to run the original conspiracy follow-
ing his falling out with Lampkins.

Appellants next point to the fact that "for a short period of time
Smith did not operate with anyone" as evidence of multiple conspira-
cies. Brief for Appellants at 18. The "gap" relied on by appellants
occurred between the summer of 1993, when Branch was brought in
by Lampkins, and the time "several months" later when Branch and
Smith travelled to Charlottesville together. In United States v. Leavis,
853 F.2d 215, 218 (4th Cir. 1988), we found that an eight month gap
between overt criminal acts did not demonstrate the existence of two
separate conspiracies. Noting that a "single overall agreement need
not be manifested by continuous activity," Id. at 218 (quoting United
States v. Bloch, 696 F.2d 1213, 1215 (9th Cir. 1982)), we stated
"[o]ur focus must not be on the timing of the conspiracy's operations,
but on whether it functioned as an ongoing unit." Id. at 218-19. Based
on the similarity between Smith's activities before and after the
alleged "gap" in activity, a reasonable jury could have easily found
that the conspiracy functioned as an ongoing unit. Moreover, the evi-
dence clearly shows that inactivity by Smith did not necessarily mean
that the conspiracy was inactive. For example, the operation contin-
ued to run as usual while Smith was incarcerated for a period of time.
Additionally, Smith remained in New York (or elsewhere) during sev-
eral of Branch's trips to Charlottesville, and did not accompany
Branch and Monroe on the trip which led to their arrest.

Thus, the evidence presented to the jury supported a finding of a
single, ongoing conspiracy. The jury was instructed that it could not
convict if it found that the single conspiracy charged in the indictment
had not been proved. "If the jury is properly instructed, the finding of
a single conspiracy must stand unless the evidence, taken in the light
most favorable to the government, would not allow a reasonable jury
to so find." United States v. Urbanik, 801 F.2d 692, 695 (4th Cir.
1986). The evidence in this case certainly meets that standard.

II.

The second issue raised by appellants applies only to Smith. He
contends that the trial court erred in ruling that the government had
provided him with timely notice of its intent to enhance his sentence

8
based on his prior convictions. Under 21 U.S.C.§ 851, if the govern-
ment intends to seek a sentence enhancement based on a defendant's
prior convictions, "before trial," it must file an information with the
court, stating the convictions to be relied upon, and must serve a copy
of such information upon the defendant or his/her counsel.1

On February 16, 1995, five days before the trial began, AUSA Ste-
phen Baer filed the required notices with the district court in both
Smith and Monroe's cases. Each notice contained a certification that
it was mailed to the defendant's counsel on the same date (2/16/95).
On May 17, 1995, Smith's attorney, David B. Franzen filed a
response to the § 851 notice, stating that he did not receive the notice
until after the trial had concluded. This response did not indicate the
date on which the notice was received. At Smith's sentencing hearing
on June 12, 1995, Franzen stated that, while he could not remember
the specific date, he knew that he had mailed a copy of the notice to
Smith on March 1, and remembered mailing it either on the day he
received it or the next day. Neither Franzen nor Monroe's counsel had
date-stamped their respective notices upon receipt, but the court's
copy of each notice was date-stamped February 16, 1995. Monroe's
counsel stated that she had been provided the § 851 notice with
respect to her client prior to February 16. Thus, she had no reason to
object to a late filing, nor did she have a reason to remember when
she received the notice mailed on February 16, as it was a duplicate.
(She did have two copies of the notice, indicating that she did, at
some point, receive the notice mailed on February 16).

The district court found as a fact that Smith's§ 851 notice was
timely filed. Based on the evidence before the court, we cannot say
that this finding was clearly erroneous.2
_________________________________________________________________
1 In Kelly v. United States , 29 F.3d 1107 (7th cir. 1994), the Seventh
Circuit "join[ed] the five other circuits to have examined [the] question
and conclude[d] that `before trial' means before the commencement of
jury selection." Id. at 1110. The Fourth Circuit has not specifically
addressed this question. We need not do so here because in this case
there is a factual dispute as to when Smith received his notice, not a legal
dispute as to the meaning of "before trial."
2 An additional factor supporting the district court's finding is that Fed-
eral Rule of Criminal Procedure 49(b) provides that service upon a

9
III.

Appellants next contend that the court improperly sentenced them
by relying on presentence reports that constituted"double hearsay."
When Smith's counsel objected that certain information contained in
his presentence report contained inadmissible hearsay and so was
unreliable, the U.S. Probation Officer responded in an addendum to
the report, explaining that the information had been summarized from
presentence reports prepared for the New Jersey and New York state
courts.

In response to Monroe's hearsay objections to information in his
presentence report, the Probation Officer who had prepared that report
responded that he and employees of the U.S. Attorney's Office veri-
fied the information. At Monroe's sentencing hearing, the officer tes-
tified that, for two of the convictions referred to in the report, he had
received certified copies of the conviction judgments from the Supe-
rior Court of New Jersey, Atlantic County. He also testified that he
had received additional information about those convictions from the
probation office in New Jersey. As to the third conviction and narra-
tive about which Monroe complains, the probation officer testified
that he had not received a certified copy of the judgment of conviction
(as he had requested), but he had received "a collateral of informa-
tion" from the probation officer in the Southern District of New York.

The Federal Rules of Evidence (other than those rules regarding
privileges) do not apply to sentencing proceedings. Fed. R. Evid.
1101(d)(3). This court and several of our sister circuits have held that
a district court may consider uncorroborated hearsay evidence in
determining sentence, as long as defendant is given an opportunity to
refute the evidence. United States v. Terry, 916 F.2d 157, 161 (4th
Cir. 1990). See also United States v. McDonald , 964 F.2d 390, 394
(5th Cir. 1992); United States v. Silverman, 976 F.2d 1502, 1512 (6th
_________________________________________________________________

party's attorney "shall be made in the manner provided in civil actions."
Federal Rule of Civil Procedure 5(b) states that"[s]ervice by mail is
complete upon mailing." Therefore, having no reason to doubt the verac-
ity of the certification, the notice to Smith was mailed, and thus served,
on February 16, 1995, five days before trial.

10
Cir. 1992), cert. denied, 507 U.S. 990 (1993); United States v. Evans,
891 F.2d 686, 688 (8th Cir. 1989), cert. denied , 495 U.S. 931 (1990);
United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984). In
order to refute the evidence, the defendant must establish that it is
inaccurate or unreliable, not merely that it is hearsay and thus "inad-
missible." Terry, 916 F.2d at 162 ("A mere objection to the finding
in the presentence report is not sufficient. The defendant has an affir-
mative duty to make a showing that the information in the presen-
tence report is unreliable, and articulate the reasons why the facts
contained therein are untrue or inaccurate.") See also McDonald, 964
F.2d at 394; Silverman, 976 F.2d at 1512; Evans, 891 F.2d at 688.
Neither Smith nor Monroe has asserted that the information contained
in their presentence reports is untrue. Although both argue that the
information is unreliable, they have offered no support for this con-
clusion other than the fact that the information is hearsay. Thus, nei-
ther appellant has carried his burden. See Terry , 916 F.2d at 162
("appellant merely claimed the information . . . was unreliable. He
never claimed it was inaccurate or untrue.") The district court permis-
sibly relied on the information contained in the presentence reports.

IV.

Smith and Monroe claim that the district court erred in denying
their motion for a mistrial after the court was advised that at least one
juror observed them in handcuffs as they were brought into court. In
United States v. Ford, 19 F.3d 1271 (8th Cir. 1993), cert. denied, 115
S. Ct. 741 (1995), the Eighth Circuit recently considered a similar sit-
uation. The court held that the defendant "ha[d] the burden of demon-
strating prejudice from the juror's brief, inadvertent exposure to him
in custody." Id. at 1272. As in Ford , here the jury's exposure to the
defendants in handcuffs was both brief and inadvertent. Outside of
mere speculation, Smith and Monroe have not demonstrated that any
prejudice resulted from the incident, and thus the district court did not
abuse its discretion in denying the mistrial.

V.

Smith and Monroe next argue that the trial court erred in granting
an instruction that did not require the government to prove that the
amount of drugs involved was the amount charged in the indictment.

11
In a related argument, they contend that the government did not, in
fact, prove that the quantity of drugs involved was the quantity
alleged in the indictment. The indictment charged that the appellants
conspired "[t]o possess with the intent to distribute or distribute more
than 50 grams of cocaine base . . . in violation of Title 21, United
States Code, Sections 841(a)(1) and 841(b)(1)(A)." Count 4, applica-
ble only to Monroe, charged him with possession with intent to dis-
tribute more than five grams of cocaine base. In response to a
government request, and over appellants' objection, the court gave the
jury the following instruction:

The evidence received in this case need not prove the
actual amount of the controlled substance that was part of
the alleged transaction or the exact amount of the controlled
substance alleged in the indictment as possessed with intent
to distribute by the defendants.

The government must prove beyond a reasonable doubt
that a measurable amount of the controlled substance was,
in fact, knowingly and intentionally possessed with the
intent to distribute by the defendants.

Numerous courts of appeals, including this one, have held that sen-
tence enhancement facts such as drug quantity are not elements of the
offense that must be proven beyond a reasonable doubt. See United
States v. Parker, 30 F.3d 542 (4th Cir.), cert. denied, 115 S. Ct. 605
(1994); United States v. Lam Kwong-Wah, 966 F.2d 682 (D.C. Cir.),
cert. denied, 506 U.S. 901 (1992); United States v. Johnson, 944 F.2d
396 (8th Cir.), cert. denied, 502 U.S. 1008 (1991); United States v.
Rigsby, 943 F.2d 631 (6th Cir. 1991), cert. denied, 503 U.S. 908
(1992); United States v. Engleman, 916 F.2d 182 (4th Cir. 1990);
United States v. Peters, 912 F.2d 208 (8th Cir. 1990), cert. denied,
498 U.S. 1094 (1991); United States v. Powell , 886 F.2d 81 (4th Cir.
1989), cert. denied, 493 U.S. 1084 (1990). See also McMillan v.
Pennsylvania, 477 U.S. 79 (1986) (discussing state, rather than fed-
eral sentencing provisions). Appellants have failed to cite any author-
ity to the contrary, but argue that in this case, the result should be
different because the indictment expressly charged specific quantities
of crack cocaine.

12
Appellants' argument ignores the fact that in several of the above-
cited cases, as in this case, the indictment expressly charged a specific
quantity of drugs. See Parker, 30 F.3d at 545 ("a grand jury . . .
indicted Parker for one count of distributing, or possessing with the
intent to distribute, more than five grams of crack"); Johnson, 944
F.2d at 405 (referring to "the allegation in the indictment that the
defendant possessed at least five grams of cocaine base"); Rigsby, 943
F.2d at 634 ("Count one charged defendant with manufacturing 1,000
or more marijuana plants"); Powell, 886 F.2d at 82 ("Powell was
charged with one count of possession with intent to distribute 50
grams or more of crack cocaine"). The remainder of the above-cited
cases are unclear as to precisely what was charged in the indictments.
See Lam Kwong-Wah, 966 F.2d at 683; Engleman , 916 F.2d at 183;
Peters, 912 F.2d at 209. Regardless of whether a drug quantity is spe-
cifically charged in the indictment, each of the above-cited cases
notes that the drug quantity is not a necessary element of the offense,
but is rather a fact relating to sentencing, that may be proved merely
by a preponderance of evidence and is determined by the court at sen-
tencing. Parker, 30 F.3d at 554; Lam Kwong-Wah, 966 F.2d at 685-
86; Johnson, 944 F.2d at 405; Rigsby, 943 F.2d at 640,3 Engleman,
916 F.2d at 184; Peters, 912 F.2d at 212; Powell, 886 F.2d at 85.

Because the weight of authority establishes that drug quantity is not
an element of the offense that must be proved beyond a reasonable
doubt and determined by the jury, the jury instruction given in this
case was proper. Appellants base their related argument (as to what
the government actually proved) on the assumption that the quantity
of drugs was a necessary element of the offense to be proven to the
jury. Accordingly, this argument must also fail.

VI.

The next issue raised by the appellants is the district court's denial
of their motions for a new trial following the disclosure that a govern-
ment witness, Robert Tinsley, was a police informant making under-
_________________________________________________________________
3 The Court in Rigsby followed the "great weight of authority holding
that quantity is not an element of a § 841 offense," 943 F.2d at 640, but
did so with reluctance, and with an extensive discussion of the reasons
for its disagreement with the rule. Id. at 340-43.

13
cover buys which were recorded by video and audio tapes. Appellants
assert that one of the video tapes showed their co-defendant, Dicker-
son, engaged in a drug transaction with Tinsley. They maintain that
they both wanted to show the video tapes to the jury, while Dicker-
son's counsel "vehemently objected," thus creating an irreconcilable
conflict between the co-defendants. The government responds that no
conflict existed, as the tapes do not depict Dickerson engaged in a
drug transaction, rather, he can be seen in the background on one of
the tapes. We need not reach this issue, however, as the appellants
waived their right to challenge the denial of their motion for a new
trial when they viewed the video tapes prior to the close of their cases
but did not introduce them in evidence or explain on the record why
they could not introduce them.

VII.

Finally, Monroe and Smith argue that they should have been
granted a downward departure pursuant to § 5K2.0 of the Sentencing
Guidelines. Section 5K2.0 provides for a departure when there exists
"an aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing Commis-
sion in formulating the guidelines." Smith and Monroe note that their
sentencing ranges were "predicated upon there being a difference in
the guidelines applicable to cocaine base, or `crack' cocaine and the
guidelines applicable for powder cocaine." Brief for Appellants at 48.
They argue that a downward departure was necessary to reflect the
Sentencing Commission's February 28, 1995 recommendation to
Congress to treat crack cocaine and powder cocaine equally. Appel-
lants concede that they did not raise this issue in the district court, but
assert that the court's failure to depart downward rises to the level of
plain error. We do not agree, particularly in light of Congress' subse-
quent rejection of the Commission's recommendation. See United
States v. Sanchez, 81 F.3d 9, 11 (1st Cir. 1996) (rejecting the identical
argument, both because Congress rejected the recommendation, and
because "[a] Sentencing Commission's recommendation to the Con-
gress is not the kind of `circumstance' that[§ 5K2.0] covers").

The appellants' convictions and sentences are therefore

AFFIRMED.

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