United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2000 Decided June 30, 2000
No. 99-3012
United States of America,
Appellee
v.
Eddie J. Mathis,
Appellant
No. 99-3013
United States of America,
Appellee
v.
Maurice T. Lee,
Appellant
---------
No. 99-3014
United States of America,
Appellee
v.
Walter Mathis,
Appellant
Appeals from the United States District Court
for the District of Columbia
(No. 97cr00334-01)
(No. 97cr00334-02)
(No. 97cr00334-04)
David Schertler argued the cause for appellant Eddie J.
Mathis. Barry Coburn, appointed by the court, was on brief.
Adam H. Kurland, appointed by the court, argued the
cause for appellant Maurice T. Lee.
Mary M. Petras, appointed by the court, argued the cause
for appellant Walter Mathis.
Barbara J. Valliere, Assistant United States Attorney,
argued the cause for the appellee. Wilma A. Lewis, United
States Attorney, and John R. Fisher, William M. Blier and
Valinda Jones, Assistant United States Attorneys were on
brief.
Before: Ginsburg, Henderson and Rogers, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Appellants
Eddie Mathis, Walter Mathis and Maurice Lee were convict-
ed on a single count of conspiracy to distribute and possess
with the intent to distribute heroin and cocaine in violation of
21 U.S.C. s 846. The appellants challenge their convictions,
claiming that the government's evidence at trial proved multi-
ple conspiracies and that the variance between the single
conspiracy charge on which they were indicted and the evi-
dence against them substantially prejudiced them. Addition-
ally, Walter Mathis claims that the district court erroneously
admitted other crimes evidence at trial and committed two
sentencing errors. Appellants Eddie Mathis and Lee also
challenge the district court's application of the United States
Sentencing Guidelines (Guidelines) in sentencing them. Fi-
nally, Lee claims that the district court erroneously admitted
his handgun and certain legal documents into evidence. We
conclude that while the government's conspiracy evidence
varied from the conspiracy charged, the variance did not
substantially prejudice the appellants. We affirm the district
court in all other respects except for its application of section
4A1.1(d) of the Guidelines in sentencing Walter Mathis. Ac-
cordingly, we affirm all three appellants' convictions and
Eddie Mathis's and Lee's sentences but vacate Walter Math-
is's sentence and remand to the district court to resentence
him in accordance with this opinion.
I.
Viewed most favorably to the government, see United
States v. Thomas, 114 F.3d 228, 244 (D.C. Cir. 1997), the
evidence showed that in about May 1996 Eddie Mathis, with
his nephew Lee's assistance, reestablished a preexisting drug
distribution network. Eddie Mathis obtained cocaine and
heroin from different suppliers and sold it to Eugene Mat-
thews, who then resold it on the streets of the District of
Columbia (District). On September 18, 1996 Eddie Mathis's
brother, Walter Mathis, finished his parole term and "be-
tween September and October" of 1996 joined the conspiracy
by delivering an ounce of heroin to Matthews. Trial Tr.
4/30/98 at 128. During this time, agents of the Drug Enforce-
ment Administration (DEA) were investigating another co-
caine dealer, Robert Andrews (Eddie Mathis's father-in-law).
By wiretapping Andrews's telephones, DEA agents learned
that Andrews and Eddie Mathis shared the same New York
drug supplier, Miguel Franklin Castro. Andrews had intro-
duced Eddie Mathis to Castro's initial courier, Elias Rodri-
guez, to whom Eddie Mathis expressed an interest "in dealing
with heroin." Trial Tr. 5/6/98 (a.m.) at 56. Andrews and
Eddie Mathis pooled their money to buy enough cocaine and
heroin from Castro (through Rodriguez) to make it "worth it
for [Rodriguez] to come" to the District. Trial Tr. 5/6/98
(p.m.) at 12. Castro's new courier, Vladimir Perez, at first
delivered the drugs to Andrews's house and also delivered
cocaine and heroin to Harold Corbett, another drug dealer
operating in the District. Soon Eddie Mathis himself ordered
heroin from Castro.
On March 8, 1997 DEA agents, acting undercover, ordered
250 grams of heroin from Andrews. After Perez delivered
the heroin, the police arrested both Andrews and Perez.
They pleaded guilty and Perez identified Castro, Rodriguez
and Eddie Mathis as coconspirators. On July 9, 1997 DEA
agents arrested Castro as he was preparing to sell Eddie
Mathis 300 grams of heroin. Castro pleaded guilty to drug
trafficking charges and cooperated with the DEA by making
several monitored telephone calls to Eddie Mathis to arrange
a drug deal. Castro arranged a heroin sale to Eddie Mathis.
Eddie Mathis dispatched Lee to purchase the heroin and a
DEA agent arrested Lee on August 20, 1997. DEA agents
were unable to arrest Eddie Mathis before he went into
hiding but they subsequently filed a complaint against him
and obtained a warrant for his arrest.
Meanwhile, in July 1997 Eddie Mathis contacted Rodney
Patterson and Terry Kelton, who were then inmates at the
United States Penitentiary in Lewisburg, Pennsylvania, about
arranging a drug transaction. Patterson and Kelton intro-
duced Eddie Mathis to Peter Coley, a fellow inmate. Unbe-
knownst to Eddie Mathis, Coley had agreed to assist DEA
agents in setting up a drug sale to Eddie Mathis. Through
monitored telephone calls, Coley spoke to Eddie and Walter
Mathis several times. With the help of DEA agent Samuel
Bates, Coley arranged a drug transaction at the Landover
Mall in Landover, Maryland. On November 5, 1997 Bates
and an undercover Baltimore City Police detective, carrying a
five kilogram package of sham cocaine, met Walter Mathis
and Dee Smith at the Landover Mall. Walter Mathis then
dispatched Smith, who drove a gold and tan Geo vehicle, to
pick up Eddie Mathis. Eddie Mathis arrived at the Mall
fifteen minutes later. Smith then left the Mall in his Geo.
Bates showed Eddie Mathis the cocaine, who replied "Okay,"
and DEA agents then arrested both Eddie and Walter Math-
is. Trial Tr. 5/12/98 at 148. Less than an hour later DEA
agents spotted Smith's gold and tan Geo parked in front of
the Glenarden Apartments adjacent to the Landover Mall.
Inside an apartment the officers found and searched Smith,
recovering a semiautomatic handgun magazine. In the glove
compartment of the Geo the officers recovered Smith's loaded
semiautomatic handgun. A search of Smith's apartment un-
covered copies of court documents related to Lee which Lee
had mailed to a Maryland post office box and letters from
Kelton to Smith regarding Lee's court proceedings.
The government secured a six-count indictment against
Eddie Mathis, Walter Mathis, Lee and Rodriguez, charging
each of them with one count of conspiracy to distribute and
possess with the intent to distribute heroin and cocaine in
violation of 21 U.S.C. s 846. Additionally, Eddie Mathis was
charged individually with two counts of possession of heroin
with intent to distribute and one count of possession of
cocaine with intent to distribute in violation of 21 U.S.C.
s 841(a)(1) & (b)(1)(B)(i); he and Lee were jointly charged
with one count of possession of heroin with intent to distrib-
ute in violation of 21 U.S.C. s 841(a)(1) & (b)(1)(B)(i). Eddie
Mathis was also charged with one count of conspiracy to
launder money in violation of 21 U.S.C. s 841(a)(1) &
(b)(1)(B)(ii). On May 22, 1998 a jury found Eddie and Walter
Mathis and Lee guilty of conspiracy.1 After the district court
sentenced the appellants, they filed their timely appeals.
__________
1 Eddie Mathis was convicted on two counts and Lee on one count
of possession of heroin with intent to distribute in violation of 21
U.S.C. s 841(a)(1) & (b)(1)(B)(i). Eddie Mathis was also convicted
of money laundering in violation of 18 U.S.C. s 1956(a)(1)(B)(i).
The jury acquitted him on the two remaining counts against him
and also acquitted Rodriguez of conspiracy.
II.
The indictment charged Eddie and Walter Mathis and Lee
with participating in a single conspiracy to possess and dis-
tribute cocaine and heroin from "at least in or about May
1996 to on or about November 5, 1997." Indictment at 1.
The appellants concede that the evidence establishes a con-
spiracy among themselves, Castro, Rodriguez, Perez and
Matthews (the Mathis-Castro conspiracy) but contend it end-
ed with Lee's arrest on August 20, 1997,2 after which date all
participants except Eddie and Walter Mathis were under
arrest. They contend that evidence of the transaction culmi-
nating in the November 5 reverse sting involving Coley and
the Mathises constituted a separate conspiracy (the Mathis-
Coley conspiracy) which materially varied from the conspira-
cy on which they were indicted. In addition, Eddie Mathis
contends that evidence of Castro's drug deliveries to Andrews
involved a separate conspiracy (the Andrews-Castro conspira-
cy) from the Mathis-Castro conspiracy.
A. Variance
In order to establish that a variance between the indict-
ment and the evidence requires a reversal of their convic-
tions, the appellants must demonstrate
(1) that the evidence at trial established the existence of
multiple conspiracies, rather than the one conspiracy
alleged in the indictment, and
(2) that because of the multiplicity of defendants and
conspiracies, the jury was substantially likely to transfer
evidence from one conspiracy to a defendant involved in
another.
United States v. Gaviria, 116 F.3d 1498, 1516 (D.C. Cir. 1997)
(quotation omitted). To determine whether the evidence
supports a single conspiracy as opposed to multiple conspira-
cies, the court, viewing the evidence in the light most favor-
able to the government, see Thomas, 114 F.3d at 244, looks at
"whether the defendants shared a common goal, any interde-
pendence among the participants, and any overlap among the
__________
2 All dates occurred in 1997 unless otherwise noted.
participants in the allegedly separate conspiracies." Gaviria,
116 F.3d at 1533 (citation omitted). The participants shared
a common goal to distribute drugs for profit in the District.
Furthermore, Eddie and Walter Mathis's involvement with
participants Castro, Andrews and Coley established cocon-
spirator overlap. See id. at 1533 (overlap satisfied when main
conspirator works with all participants); United States v.
Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996) (overlap satisfied
when "main figures" are involved in all alleged schemes).
The government, however, did not show the participants'
interdependence in a single conspiracy. It established a
"hub" conspiracy consisting of appellants Eddie and Walter
Mathis and Lee.3 To further their conspiracy the appellants
obtained drugs from different suppliers including Castro,
Andrews and Coley. Each supplier became a separate
"spoke" of the hub.4 But "[w]ithout a rim to enclose the
spokes, ... the evidence ma[kes] out multiple conspiracies,
not the single one alleged." United States v. Tarantino, 846
F.2d 1384, 1392 (D.C. Cir. 1988) (citing Kotteakos v. United
States, 328 U.S. 750, 755 (1946)). At oral argument the
government described the rim enclosing the supplier spokes
as the common goal to sell illegal drugs in the District.
According to the government, it needed to show interdepen-
dence only among the hub sellers, not among the spoke
suppliers. See Appellee's Br. 24. Our caselaw, however,
teaches that competing spoke suppliers in a hub conspiracy
must not only have a connection to the hub sellers5 but must
also have interdependence among each other in order to form
__________
3 The "hub" is "the focal, key or central member[s] of a wheel
conspiracy." United States v. Flood, 965 F.2d 505, 509 (7th Cir.
1992).
4 The "spokes" are the hub's "associates" who are involved in
individual transactions and "know that they are working for the
hub." United States v. Payne, 99 F.3d 1273, 1279 n.5 (5th Cir.
1996).
5 The government does not dispute that interdependence must
exist between the spoke suppliers and the hub conspiracy. See
Appellee's Br. 24.
a rim and constitute a single conspiracy. In United States v.
Graham, 83 F.3d 1466 (D.C. Cir. 1995), the government
established the operation of the "Newton Street Crew," a
cocaine trafficking organization consisting of three different
"cliques" or groups of people selling drugs together. The
three defendants charged with conspiracy were members of
the same clique but the government used evidence of the
entire drug operation, including all three cliques, to establish
the conspiracy. The court analyzed the connections among
the three drug cliques in concluding that the evidence "was
sufficient for a reasonable juror to conclude that ... the
cliques were dependent on each other." Graham, 83 F.3d at
1472; see also United States v. Anderson, 39 F.3d 331, 347
(D.C. Cir. 1994), rev'd in part en banc, 59 F.3d 1323 (D.C.
Cir. 1995) (core hub conspiracy with various unrelated suppli-
ers "likely ... varied from the indictment's conspiracy
count") (citing United States v. Townsend, 924 F.2d 1385,
1395-1402 (7th Cir. 1991) (conspiracy requires interdependen-
cy among competing suppliers)). Although "fairly minimal"
evidence may establish interdependency, Gatling, 96 F.3d at
1522, some connection among competing spoke suppliers in a
hub conspiracy must exist in order to constitute one conspira-
cy. With the foregoing in mind, we must determine whether
spoke suppliers Andrews, Castro and Coley were interdepen-
dent.
The evidence supports Andrews's involvement not solely
with Eddie Mathis but also with Castro. Andrews introduced
Eddie Mathis to Castro and DEA surveillance of Andrews
uncovered Eddie Mathis's subsequent connection with Castro.
Furthermore, according to Castro, Eddie Mathis relied on
Andrews as an initial critical link to order heroin from Castro.
Finally, Castro delivered drugs to both Andrews and Eddie
Mathis at Andrews's house. This evidence is more than
sufficient for a reasonable juror to conclude that Andrews had
the requisite connection to competing supplier Castro and
thus participated in the Mathis-Castro conspiracy. See Gra-
ham, 83 F.3d at 1471 (finding interdependency among cliques
that purchased and distributed drugs together).
The evidence does not, however, manifest a connection
between Coley and either Castro or Andrews. The govern-
ment does not point us to evidence of such a connection,
apparently assuming that interdependency among suppliers is
not required. With no connection between Coley and either
Castro or Andrews, however, we conclude that the Mathis
brothers' transaction with Coley constituted a separate con-
spiracy, the Mathis-Coley conspiracy. Accordingly, the gov-
ernment's evidence regarding Coley and the November 5
reverse sting varied from the Mathis-Castro conspiracy
charged in the indictment.
In order to reverse their convictions, however, the appel-
lants must show that the variance "substantially prejudiced"
them through "spillover prejudice." Gaviria, 116 F.3d at
1533. Substantial prejudice occurs when multiple defendants
are charged with a large and complex conspiracy and spill-
over prejudice confuses the jurors. See United States v.
Stewart, 104 F.3d 1377, 1382 (D.C. Cir. 1997) (trial of multiple
defendants increases "danger that, due to 'spillover' effects,
appellant might be found guilty based on evidence properly
admitted only against someone else"). The record here does
not suggest such spillover prejudice or jury confusion. First,
the risk of "spillover prejudice ... is less likely the fewer the
defendants." Gaviria, 116 F.3d at 1533 (no risk of prejudice
with four charged defendants); see also Anderson, 39 F.3d at
348 (no risk of prejudice with ten charged defendants). Here,
as in Gaviria, the government indicted only four defendants.
Second, the government introduced tape recordings of con-
versations among Eddie Mathis, Castro and Andrews and
among Eddie and Walter Mathis and Coley. The govern-
ment also used a videotape of Lee selling drugs. The jury,
therefore, had " 'no need to look beyond each defendant's own
words in order to convict.' " Gaviria, 116 F.3d at 1533
(quoting Anderson, 39 F.3d at 348). Third, Eddie and Walter
Mathis played roles in both the Mathis-Castro and the Math-
is-Coley conspiracies. See id. Finally, the district court
instructed the jury that it could convict only if the evidence
supported one conspiracy instead of two. See Trial Tr.
5/20/98 at 32. Neither the Mathis brothers nor Lee objected
to the jury charge, see id., and they therefore bear a "heavy
burden of showing substantial prejudice" because the "jury is
presumed to follow a trial court's instructions." United
States v. Jackson, 627 F.2d 1198, 1213 (D.C. Cir. 1980)
(citations omitted). In sum, although we find a variance
between the indictment charging a single conspiracy and the
trial evidence indicating more than one conspiracy, we con-
clude the variance did not substantially prejudice the appel-
lants.6
B. Walter Mathis
The indictment charged only one conspiracy (the Mathis-
Castro conspiracy); the government's evidence of the Mathis-
Coley conspiracy therefore constituted "other crimes" evi-
dence under Federal Rule of Evidence 404(b), and, Walter
Mathis claims, was improperly admitted.7 We review the
district court's admission of "other crimes" evidence for abuse
of discretion. Graham, 83 F.3d at 1472. Evidence of an
uncharged crime or bad act is admissible if it is relevant,8
__________
6 Eddie Mathis also argues that evidence of Castro's drug sales to
another dealer, Corbett, established a separate conspiracy. Corbett
obtained drugs initially from Andrews and later from Castro, see
Trial Tr. 5/5/98 (a.m.) at 37, thus showing interdependency among
the Mathis-Castro conspiracy participants. See Graham, 83 F.3d
at 1472. There is no evidence, however, linking Corbett (as a spoke
or otherwise) in the Mathis-Castro hub conspiracy including Eddie
and Walter Mathis and Lee. Assuming without deciding that
Corbett's involvement with Andrews and Castro indicates a sepa-
rate conspiracy, we conclude that the evidence of that conspiracy
was not substantially prejudicial to Eddie Mathis. See Anderson,
39 F.3d at 348.
7 Walter Mathis contends for the first time on appeal that,
because of the variance, the government's indictment joined two
conspiracies and was therefore duplicative. This argument is
waived, however, because defenses based on " 'defects in the indict-
ment' ... are waived under [Federal Rule of Criminal Procedure]
12(f) if not raised prior to trial." United States v. Weathers, 186
F.3d 948, 952 (D.C. Cir. 1999) (quoting Fed. R. Crim. P. 12(b)).
8 "Relevant evidence" is "evidence having any tendency to make
the existence of any fact that is of consequence to the determination
probative of a material issue (such as intent) other than the
defendant's character9 and its probative value is not substan-
tially outweighed by its prejudicial effect.10 See Gaviria, 116
F.3d at 1532. In a conspiracy prosecution, the government is
usually allowed considerable leeway in offering evidence of
other offenses "to inform the jury of the background of the
conspiracy charged, to complete the story of the crimes
charged, and to help explain to the jury how the illegal
relationship between the participants in the crime devel-
oped."11 United States v. Williams, 205 F.3d 23, 33-34 (2d
Cir. 2000) (internal quotation marks and quotation omitted).
Evidence of the Mathis-Coley conspiracy was relevant to
show Walter Mathis's intent to act in concert with his brother
Eddie Mathis to possess drugs with the intent to distribute
them. Furthermore, the probative value of the Mathis-Coley
conspiracy is not "substantially outweighed" by its prejudicial
effect. Evidence tending to demonstrate "intent, plan, prepa-
ration, and motive ... is particularly probative where the
government has alleged conspiracy," United States v. Sam-
pol, 636 F.2d 621, 659 & n.23 (D.C. Cir. 1980) (citations
omitted), and as discussed supra, evidence of the Mathis-
__________
of the action more probable or less probable than it would be
without the evidence." Fed. R. Evid. 401.
9 In pertinent part, Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of ... intent, ... plan....
10 Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
11 We note that "the principles governing what is commonly
referred to as other crimes evidence are the same whether the
conduct occurs before or after the offense charged." United States
v. Latney, 108 F.3d 1446, 1449 (D.C. Cir. 1997).
Coley conspiracy did not substantially prejudice Walter Math-
is. In light of the government's recognized latitude in using
other crimes evidence in a conspiracy prosecution and the
probative value of the Mathis-Coley conspiracy to show in-
tent, we conclude that the district court did not abuse its
discretion in admitting evidence of the Mathis-Coley conspir-
acy.
Walter Mathis also raises two challenges under the Guide-
lines. First, he claims that the district court erroneously
failed to apply section 3B1.2(b) which provides a two-level
reduction for a "minor participant," defined as "any partici-
pant who is less culpable than most other participants."
U.S.S.G. s 3B1.2, Application Note 3. A minor participant's
relevant conduct must involve more than one participant and
" 'culpability for such conduct [must be] relatively minor
compared to that of the other participant(s).' " United States
v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir. 1996) (quoting
United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir.
1991)). Walter Mathis contends that his role in the Mathis-
Castro conspiracy was similar to Lee's (who did receive the
minor participant reduction) and therefore the district court
erroneously found that his was not a "relatively minor" role
compared to the other participants' roles. Because "[t]he
application of section 3B1.2 is inherently fact-bound" it is
"largely committed to the discretion of the trial judge."
Caballero, 936 F.2d at 1299. Ultimately, we uphold the
district court's findings of fact unless "clearly erroneous."
United States v. Bridges, 175 F.3d 1062, 1065 (D.C. Cir.
1999).
The district court decided Lee was a minor participant
because he "was used only as a messenger" or a "gopher" in
small deals. Sentencing Tr. 1/6/99 at 72. Lee did not play "a
role in the planning of the criminal enterprise." Id. at 73.
Walter Mathis, on the other hand, participated in a series of
telephone calls in which he, Eddie Mathis and others
"planned, discussed and arranged for the delivery of 5 kilo-
grams of cocaine," which was "the largest single delivery of
drugs in the whole case." Id. at 47-48. Although we have
concluded that the November 5 reverse sting was not part of
the offense of conviction, the district court may nonetheless
consider it at sentencing as relevant conduct. See United
States v. Drew, 200 F.3d 871, 879 (D.C. Cir. 2000) (citing
United States v. Nichols, 511 U.S. 738, 747 (1994)). The
district court correctly considered Walter Mathis's relevant
conduct in the November 5 reverse sting and, accordingly, it
did not clearly err in failing to apply section 3B1.2(b)'s minor
participant reduction to him notwithstanding its treatment of
Lee to the contrary.
Finally, Walter Mathis contends that the district court
erroneously applied section 4A1.1(d)'s two-point increase to
his offense level because the government did not prove by a
preponderance of the evidence that he was on parole at the
time of his offense.12 In view of the government's conces-
sion,13 we conclude that the district court clearly erred in this
factual determination and we remand for resentencing be-
cause of the incorrect addition of a two-level adjustment
under section 4A1.1(d). See Drew, 200 F.3d at 874.
C. Eddie Mathis
Eddie Mathis also challenges the district court's application
of section 2D1.1(b)(1) of the Guidelines providing a two-level
increase "[i]f a dangerous weapon (including a firearm) was
possessed" during a drug offense. The weapon need not be
used, but merely "present, unless it is clearly improbable that
the weapon was connected with the offense." U.S.S.G.
s 2D1.1, Application Note 3; see United States v. Burke, 888
F.2d 862, 869 (D.C. Cir. 1989) (section 2D1.1(b)(1) does not
require that defendant "used or would have used the fire-
arm"). Within one hour of arresting Eddie and Walter
Mathis during the November 5 reverse sting, DEA agents
arrested Smith carrying ammunition and discovered his load-
__________
12 Section 4A1.1(d) provides a two point increase "if the defendant
committed the instant offense while under any criminal justice
sentence, including ... parole."
13 "[W]e concede that the record does not show by a preponder-
ance that appellant committed the offense while on parole." Appel-
lee's Br. 48.
ed handgun in the glove compartment of the Geo he had
driven from the crime scene. Furthermore, it was foresee-
able to Eddie Mathis that his coconspirator Smith would be
carrying a firearm in view of the fact that Eddie and Walter
Mathis were purchasing five kilograms of cocaine for $75,000
from a stranger. See Childress, 58 F.3d at 725 (coconspira-
tor's possession of handgun reasonably foreseeable when
conspirators "handled a substantial quantity of drugs and
money"). Because the district court's finding that Smith
possessed the firearm at the shopping mall where the reverse
sting took place, see Sentencing Tr. 1/6/99 at 37-38, is sup-
ported by a preponderance of the evidence and because
Smith's possession was reasonably foreseeable, we conclude
that the district court did not clearly err in applying section
2D1.1(b)(2)'s two-level increase to Eddie Mathis's sentence
calculation.
D. Lee
Lee challenges his conviction, claiming that the district
court improperly admitted evidence at trial.14 We review the
district court's evidentiary rulings for abuse of discretion.
See United States v. Williams, 2000 WL 665562, at *3 (D.C.
Cir. 2000). The improper admission of evidence is harmless
unless the reviewing court determines that the defendant was
substantially prejudiced thereby. See United States v. Small,
74 F.3d 1276, 1280 (D.C. Cir. 1996). First, Lee contends that
the district court improperly admitted into evidence the hand-
gun he possessed on July 17, 1996 because it later determined
at sentencing that there was "no evidence this gun was
carried by Lee for the purpose of furthering the ends of the
drug conspiracy." Sentencing Tr. 1/6/99 at 72. The district
court's determination at sentencing, however, does not auto-
matically equate to inadmissibility at trial because the two
__________
14 In passing, Lee asserts that the prosecutor improperly argued
during closing that the goal of the conspiracy was "selling drugs for
profit in the District of Columbia." Trial Tr. 5/19/98 at 3. We need
not address this " 'asserted but unanalyzed' argument." SEC v.
Banner Fund Int'l, 211 F.3d 602, 613 (D.C. Cir. 2000) (quoting
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).
rulings apply different standards. The court admitted Lee's
handgun at trial under the "relevant evidence" standard of
Federal Rule of Evidence 402. See supra n.8. "Relevant
evidence" need only tend to make the existence of a fact "of
consequence" more or less probable. The standard applica-
ble to the court's ruling at sentencing, however, is preponder-
ance of the evidence, that is, "evidence which as a whole
shows that the fact sought to be proved is more probable than
not.... '[P]reponderance' means something more than
'weight'; it denotes a superiority of weight, or outweighing."
United States v. Montague, 40 F.3d 1251, 1255 & n.2 (D.C.
Cir. 1994) (internal quotation marks and quotation omitted).
Lee's possession of the handgun, although not directly fur-
thering the Mathis-Castro conspiracy, may have nonetheless
constituted relevant evidence. See In re Sealed Case, 105
F.3d 1460, 1463 (D.C. Cir. 1997) (guns are common "tools of
the trade" for drug dealers) (quotation omitted). In United
States v. Payne, 805 F.2d 1062 (D.C. Cir. 1986), the court held
that the defendant's gun seized at the time and place of a
drug transaction was admissible as drug paraphernalia. See
Payne, 805 F.2d at 1066 n.5. Although Lee's gun was not
found at the time drugs were bought or sold, it was found
during the existence of the Mathis-Castro conspiracy. In
addition, the government did not mention Lee's handgun in
closing, thus mitigating any negative effect. Furthermore,
the government introduced a videotape of Lee selling drugs
as part of the Mathis-Castro conspiracy. In view of this
uncontroverted evidence of Lee's involvement in the conspira-
cy, we conclude that the district court's admission of Lee's
handgun, if error, was nevertheless harmless. See United
States v. Olano, 507 U.S. 725, 734-35 (1993) (non-prejudicial
harmless error not grounds for reversal).
Lee's contention that the district court improperly admitted
into evidence certain legal documents related to his case
similarly lacks merit. The documents, which included redact-
ed copies of the criminal complaints filed against Lee, see
Government Exhibits 610R, 611R, 612R & 613R, bore Lee's
name, were found in Smith's apartment and showed that Lee
maintained a "continuing connection" with Eddie Mathis even
after his (Lee's) arrest. Trial Tr. 5/13/98 (p.m.) at 14. Al-
though at sentencing the court found that Lee's participation
"ended with his arrest on August 20, 1997," Sentencing Tr.
1/6/99 at 72, it did not abuse its discretion in admitting these
documents at trial because they were relevant to show Lee's
continued connection with Eddie Mathis. Even if the court
did err in admitting the redacted documents, the documents
contained no substantially prejudicial information and there-
fore any error was harmless.
Finally, Lee challenges the district court's application of
the Guidelines, claiming that it erroneously failed to apply
section 5C1.2's safety valve provision.15 Lee bears the bur-
den to establish by a preponderance of the evidence that he is
entitled to safety valve relief. See United States v. White, 1
F.3d 13, 18 (D.C. Cir. 1993) ("defendant properly bears the
burden of proof under those sections of the Guidelines that
define mitigating factors") (internal quotation marks and
quotation omitted). Only the last of section 5C1.2's five
criteria is pertinent here, requiring that:
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
information and evidence the defendant has concerning
the offense or offenses that were part of the same course
of conduct or of a common scheme or plan, but the fact
that the defendant has no relevant or useful other infor-
mation to provide or that the Government is already
aware of the information shall not preclude a determina-
tion by the court that the defendant has complied with
this requirement.
See also 18 U.S.C. s 3553(f)(5). Lee argued below that he
satisfied section 5C1.2(5) notwithstanding he had no useful
information to provide the government. Lee, however, did
not proffer any information, useful or not. On appeal, Lee
__________
15 Section 5C1.2 provides that if five criteria set out in 18 U.S.C.
s 3553(f)(1)-(5) are met, "[i]n the case of an offense under 21 U.S.C.
s 841, ... [or] s 846 ..., the court shall impose a sentence in
accordance with the applicable guidelines without regard to any
statutory minimum sentence."
claims that a proffer would have been futile because the
government stated at sentencing that "at this point, post trial,
it certainly wouldn't be a productive debriefing." Sentencing
Tr. 1/6/99 at 68. Nevertheless, Lee cannot avoid his affirma-
tive disclosure obligation merely because the government
suggests a debriefing would be unproductive. See United
States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996) ("[D]e-
fendants seeking to avail themselves of downward departures
under s 3553(f) bear the burden of affirmatively acting.").
Because Lee failed to proffer information of any kind to the
government, we conclude that the district court did not
clearly err by not applying section 5C1.2.
For the foregoing reasons, we affirm the convictions of
Eddie Mathis, Walter Mathis and Maurice Lee. In addition
we affirm the sentences imposed on Eddie Mathis and Mau-
rice Lee but remand to the district court to resentence
Walter Mathis in accordance with this opinion.
So ordered.