United States v. Stover, Daniel

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2003 Decided May 23, 2003

Nos. 01-3026 & 01-3096

UNITED STATES OF AMERICA,
APPELLEE

v.

DANIEL STOVER, A/K/A BUCK, A/K/A BLADE,
AND VERNON MCCALL,
APPELLANTS

–————
Nos. 01-3029 & 01-3037

UNITED STATES OF AMERICA,
APPELLEE

v.

WALTER HENRY III, A/K/A MONEY, A/K/A HENRY WALKER
AND CHARLES HARRISON,
APPELLANTS

–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Appeals from the United States District Court
for the District of Columbia
(Nos. 98cr00235-04, -05, -06, -08)

Stephen C. Leckar, appointed by the court, for appellant
Henry, Sandra G. Roland, Assistant Federal Public Defend-
er, for appellant McCall, Paul H. Zukerberg, for appellant
Stover, and Mary M. Petras, appointed by the court, for
appellant Harrison, argued the causes. With them on the
joint briefs was A. J. Kramer, Federal Public Defender.
Walter Henry III filed pro se briefs.
Deborah Watson, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, William D. Braun,
Attorney, U.S. Department of Justice, and William J. O’Mal-
ley, Jr., Assistant U.S. Attorney.

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit
Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: In these consolidated appeals, four appel-
lants, Charles Harrison, Walter Henry, Vernon McCall, and
Daniel Stover, raise numerous challenges to their convictions
and sentences for drug conspiracy and possession with intent
to distribute. After reviewing the challenged pre-trial, trial,
post-trial, and sentencing rulings of the District Court, we
affirm the District Court on all but two of its judgments. We
vacate the sentences of Henry, Harrison, and McCall and
remand to the District Court for a new calculation of the drug
quantity for which each is responsible. We also remand
McCall’s sentence for a new finding on the scope of his
conspiratorial agreement. We have accorded all of appel-
lants’ arguments full consideration after careful examination
of the record, but this opinion addresses only those argu-
ments that warrant discussion.
 3

I. BACKGROUND
This case involves a conspiracy to import heroin from
Thailand and other Asian countries and distribute it in the
Washington D.C. and Baltimore areas. The evidence pre-
sented at trial established that, from 1995 to 1998, Nuri
Lama, a citizen of Nepal residing in New York, arranged to
import heroin from Asia into the United States, and delivered
the heroin to appellant Walter Henry. Henry stored the
drugs at his mother’s home in Capitol Heights, Maryland, and
then sold the heroin to appellant Charles Harrison, who was
the ‘‘hub.’’ Harrison ‘‘cut’’ or diluted the heroin and sold it to
a network of dealers in the Washington D.C. and Baltimore
areas, including appellant Vernon McCall. Daniel Stover,
Harrison’s right-hand man, also ‘‘cut’’ heroin, packaged and
delivered it, and collected payment for it. Stover also operat-
ed a ‘‘stash house’’ for Harrison in Fort Washington, Mary-
land.
The Government’s investigation of the heroin conspiracy
produced tapes of more than 250 telephone conversations
intercepted on telephone lines belonging to Lama, Henry, and
Harrison. On various dates in June and July 1998, the
Federal Bureau of Investigation (‘‘FBI’’) searched the homes
of Harrison, McCall, Henry (who lived with his mother), and
Michael Ball (another distributor in the conspiracy); the FBI
also searched McCall’s car and Stover’s stash house. The
searches recovered heroin, guns, cash, documents connecting
individuals to the conspiracy, small baggies of heroin for
street distribution, cutting agents, cutting and packaging
equipment, and scales.
On May 4, 1999, appellants and others were charged with
one count of conspiracy to possess with intent to distribute
one kilogram or more of heroin in violation of 21 U.S.C.
§ 846. Henry was also charged with two counts of possession
with intent to distribute heroin in violation of 21 U.S.C. § 841.
Stover and Harrison were also charged with one count of
conspiracy to commit money laundering in violation of 18
U.S.C. § 1956.
 4

From October 20, 1999 to January 12, 2000, all appellants
were tried in a jury trial before the District Court. Before
trial, Lama pled guilty to having engaged in a conspiracy and
provided evidence against appellants. Stover and McCall
were convicted of conspiracy to possess with intent to distrib-
ute. Henry was convicted of possession with intent to dis-
tribute. Stover was acquitted of the money laundering con-
spiracy count. The jury was unable to reach a verdict as to
Henry and Harrison on the drug conspiracy count, and as to
Harrison on the money laundering conspiracy count. From
September 11 to October 20, 2000, a retrial on the drug con-
spiracy count against Henry and Harrison took place. The
District Court dismissed the money laundering conspiracy
count against Harrison. The jury returned a guilty verdict
as to both Henry and Harrison on the drug conspiracy count.
Henry and Harrison were sentenced to life imprisonment,
Stover to 360 months, and McCall to 235 months.
Appellants now appeal, seeking review of pre-trial, trial,
post-trial, and sentencing rulings of the District Court.

II. ANALYSIS

A. Stover Verdict Jury Note
Stover appeals his conviction on the ground the District
Court failed to act on a note from the jury that, he alleges,
cast doubt on its guilty verdict. The jury returned a verdict
convicting Stover of conspiracy on January 7, 2000; the jury
was polled and the verdict found unanimous. On January 12,
after the jury informed the court it was hung on the conspira-
cy count against Henry, the jury sent out the following note:
During deliberations for Daniel Stover, the question
of what pieces of evidence his fingerprints were on
came up. Some thought one way, some another.
After research, it was found that some who voted
based on these supposed facts were wrong. Some
want to redeliberate on this issue, some don’t. How
 5

do we, if possible, rectify this matter? Seat 4, Seat
11, Seat 6, Seat 8, Seat 12. Can we meet privately
on this matter?
Trial Transcript (‘‘Tr.’’), reprinted in 1 Joint Appendix (‘‘JA’’)
in 01-3026, at 5781. The judge informed the lawyers who
were present he intended to tell the jurors ‘‘they can’t do
anything about judgment having been entered as to Stover,
and whatever post-trial motions are filed will be filed.’’ Tr., 1
JA in 01-3026, at 5782. He then summoned the jurors and
informed them: ‘‘I have your notes, and I have decided to
terminate your deliberations.’’ Tr., 1 JA in 01-3026, at 5791.
Stover’s counsel, who had not been present, later filed a
motion to reconvene the jury for additional deliberation,
which the court declined to grant. We review the District
Court’s actions for abuse of discretion. See United States v.
Campbell, 684 F.2d 141, 151-52 (D.C. Cir. 1982) (‘‘When
confronted with allegations of irregularity in the jury’s pro-
ceedings, the trial judge has broad discretion ‘to determine
what manner of hearing, if any, is warranted.’ TTT The trial
court correctly determined that no further inquiry was re-
quired and the judge did not abuse his discretion in respond-
ing to these allegations as he did.’’) (quoting United States v.
Wilson, 534 F.2d 375, 379 (D.C. Cir. 1976); citing United
States v. Parker, 549 F.2d 998, 1000 (5th Cir. 1977)). The
District Court below acted within its discretion and in accord
with Federal Rule of Evidence 606(b).
Rule 606(b) provides:
(b) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter
or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon
that or any other juror’s mind or emotions as influ-
encing the juror to assent to or dissent from the
verdict or indictment or concerning the juror’s men-
tal processes in connection therewith, except that a
juror may testify on the question whether extrane-
ous prejudicial information was improperly brought
 6

to the jury’s attention or whether any outside influ-
ence was improperly brought to bear upon any
juror. Nor may a juror’s affidavit or evidence of any
statement by the juror concerning a matter about
which the juror would be precluded from testifying
be received for these purposes.
FED. R. EVID. 606(b). ‘‘Federal Rule of Evidence 606(b) is
grounded in the common-law rule against admission of jury
testimony to impeach a verdict and the exception for juror
testimony relating to extraneous influences.’’ Tanner v.
United States, 483 U.S. 107, 121 (1987). This rule precludes
taking testimony from the jurors in this case regarding their
belated misgivings as it did under similar circumstances in
United States v. Dakins, 872 F.2d 1061, 1065 (D.C. Cir. 1989).
In Dakins the jury returned a partial verdict against one
defendant, the verdict was read aloud in the courtroom, the
jury was polled and unanimously assented to the verdict, and
the judge instructed the jurors to resume deliberating on the
two remaining defendants. At day’s end one juror informed
the judge she had a ‘‘question about the decision that was
made on Mr. Dakins.’’ 872 F.2d at 1064. At the judge’s
request, she wrote the question on a piece of paper which the
judge sealed, unread, in an envelope. When the envelope was
opened on appeal, the enclosed paper revealed the juror had
developed doubts about the sufficiency of the Government’s
proof of Dakins’s guilt. Upholding the trial court’s treatment
of the note, this court explained:
Juror No. 10’s second-thoughts were manifested
hours after the poll had been conducted, and the
jury had been returned to its deliberations by the
court. The verdict had been read into the court
record. Upon the 12th juror’s assent, also upon the
record, it was ‘‘recorded’’ for purposes of Rule 31(d).
The jury’s decision had become a final verdict, and
no juror could thereafter be allowed to impeach it.
Fed.R.Evid. 606(b) prohibits jurors from giving evi-
dence about any matter pertaining to their verdicts
except extrajudicial influences. Juror No. 10’s un-
sealed note revealed that her misgivings derived
 7

from her post-verdict reflections about the weight of
the government’s proof at trial, and not from an
extrajudicial influence.
872 F.2d at 1065. Rule 606(b) similarly bars eliciting juror
testimony here to impeach the verdict against Stover, which
was unanimously rendered, as the contemporaneous polling
confirmed, five days before the judge received the note. See
also Tanner, 483 U.S. at 121 (relying on Rule 606(b) to
uphold trial judge’s refusal to consider juror testimony re-
garding drug and alcohol use by jurors during deliberation to
impeach verdict). Nonetheless, Stover argues for a different
result based on other court decisions. We find none of them
applicable here.
First, Stover cites two cases from other circuits in which a
judge changed a mistaken verdict based on juror testimony:
United States v. Dotson, 817 F.2d 1127 (5th Cir. 1987),
vacated in other respect on rehearing, 821 F.2d 1034 (5th Cir.
1987), and Attridge v. Cencorp Div. of Dover Techns. Int’l,
Inc., 836 F.2d 113 (2d Cir. 1987). In each of those cases,
however, the mistake lay in recording the wrong verdict after
the jury had unanimously assented to a different one. Nei-
ther case involved post-verdict juror misgivings or any sort of
inquiry into the juror’s deliberations.
Stover also cites United States v. Benedict, 95 F.3d 17 (8th
Cir. 1996), and United States v. DiLapi, 651 F.2d 140 (2d Cir.
1981), to assert that a partial verdict, such as the one entered
here, becomes irrevocable only if the judge advises the jury of
such a result in advance. In Dakins, however, the court
expressly rejected the argument that ‘‘the court erred in
accepting the jury’s partial verdict without first having spe-
cially instructed the jury as to a partial verdict’s finality’’:
We believe no special instruction to have been neces-
sary, however. Fed.R.Crim.P. 31(b) expressly per-
mits the jury to return a verdict ‘‘with respect to a
defendant or defendants as to whom it has agreed.’’
It says nothing to suggest that such a verdict, once
recorded, is open to reconsideration, and the case
law is to the contrary. See, e.g., United States v.
 8

Hockridge, 573 F.2d 752, 759 (2nd Cir.), cert. denied,
439 U.S. 821, 99 S.Ct. 85, 86, 58 L.Ed.2d 112 (1978).
Appellant cites none, and we are aware of no
precedent requiring a special finality instruction.
Indeed, it is not even required that the jury be
instructed about its right to return a partial verdict
at all. See, United States v. DiLapi, 651 F.2d 140
(2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct.
1427, 1428, 71 L.Ed.2d 648 (1982). The trial record
here makes clear that the jury sent the note indicat-
ing that it had ‘‘reached one verdict’’ on its own
initiative. That verdict was then entered on a ver-
dict form, announced by the foreperson in open
court, and orally confirmed by each and every ju-
ror – the same solemn formalities that attend a
verdict which ends an entire case. We find no
reason for the jury to have thought its partial ver-
dict any less final than it would have been had the
jury been rendering a verdict as to all of the defen-
dants.
872 F.2d at 1064. Stover offers no persuasive reason to reach
a different conclusion here. Stover also asserts, without
supporting authority, that the court erred in not summoning
Stover’s lawyer and responding to the jury note in open court
in his presence. Such action, however, would have availed
Stover naught as Rule 606(b) would nonetheless have fore-
closed altering the verdict based on the note or additional
juror testimony. Cf. United States v. Stansfield, 101 F.3d
909, 916 (3d Cir. 1996) (‘‘Had the district court here ques-
tioned the three jurors prior to the jury’s discharge, the
jurors still would have been incompetent by virtue of Rule
606(b) to impeach the jury’s verdict.’’).

B. Ouaffai’s Testimony
At the separate trial of Henry and Harrison, the Govern-
ment called Adelhamid Ouaffai. Ouaffai testified on direct
examination that on several occasions he had sold Harrison a
large number of ziploc baggies and chemicals to cut heroin;
 9

that Harrison had told him he was a heroin dealer; and that
Harrison had said he received heroin from Chinese suppliers.
Harrison’s counsel attempted to impeach Ouaffai by having
him acknowledge prior statements he made to the FBI on
May 4, 1998, statements that were supposedly inconsistent
with his testimony on direct or cross-examination. In partic-
ular, Ouaffai conceded that he told the FBI he had met
Harrison only three to seven times, although he testified on
direct that he had met with Harrison more than ten times;
although Ouaffai testified on cross-examination that Harrison
always arrived in a blue car, he admitted telling the FBI that
Harrison always arrived in ‘‘some non-descript American
car’’; Ouaffai testified on cross-examination that he dealt with
‘‘hundreds’’ of drug dealers, but he conceded telling the FBI
that Harrison was the only drug dealer with whom he was
involved. Harrison’s counsel then asked a series of questions
suggesting that Ouaffai’s testimony was not credible because
he wanted a plea agreement.
On redirect examination, the Government sought to intro-
duce other statements from the FBI report, as well as
portions of the statement of facts from Ouaffai’s July 5, 2000,
plea agreement, consistent with Ouaffai’s testimony on direct
examination. Some of the statements addressed the inconsis-
tency regarding the number of drug dealers that Ouaffai
knew; most of the statements only reiterated Ouaffai’s testi-
mony on direct examination. In response to a defense objec-
tion, the Government argued, and the District Court agreed,
that the statements were admissible under FED. R. EVID.
801(d)(1)(b) to rehabilitate Ouaffai. (The judge instructed the
jurors that they could use prior consistent statements to
‘‘judg[e] the credibility of the witness TTT but not as proof
that what was said in the earlier statement was true.’’ Tr., 2
JA in 01-3037, at 474.) Harrison contends that the state-
ments should have been excluded.
Hearsay is an out-of-court statement ‘‘offered in evidence
to prove the truth of the matter asserted.’’ FED. R. EVID.
801(c). Rule 801 provides that a prior consistent statement is
not hearsay if it is ‘‘offered to rebut an express or implied
 10

charge against the declarant of recent fabrication or improper
influence or motive.’’ FED. R. EVID. 801(d)(1)(B). The Su-
preme Court has interpreted the rule as requiring that the
offered statement be made before there was a motive to
fabricate. Tome v. United States, 513 U.S. 150 (1995). Ac-
cording to Harrison, Ouaffai’s prior consistent statements
were made after he had a motive to fabricate – because
Ouaffai had already begun cooperating with the authorities –
and therefore were not admissible.
Rule 801(d)(1)(B) applies only when a prior consistent
statement is offered for its truth. See FED. R. EVID.
801(d)(1)(B) advisory committee’s note; Tome, 513 U.S. at
157. But statements may be introduced for reasons other
than their truth. Suppose a witness testifies on direct exami-
nation to fact X and then on cross-examination is asked about
his statement, made sometime before trial, suggesting that he
believed not-X. Could the party who called the witness ask
him to verify his prior consistent statements even though the
witness made them after he had a motive to shade the truth?
We think the answer is yes, and so do other courts of appeals.
See United States v. Simonelli, 237 F.3d 19, 26-27 (1st Cir.
2001); United States v. Ellis, 121 F.3d 908, 919-20 (4th Cir.
1997); United States v. Pierre, 781 F.2d 329, 331-33 (2d Cir.
1986); United States v. Harris, 761 F.2d 394, 399-400 (7th
Cir. 1985); see also United States v. Rubin, 609 F.2d 51, 69-
70 (2d Cir. 1979) (Friendly, J., concurring); cf. United States
v. Tarantino, 846 F.2d 1384, 1411 (D.C. Cir. 1988); Coltrane
v. United States, 418 F.2d 1131, 1140 (D.C. Cir. 1969) (decid-
ed before the adoption of the Federal Rules of Evidence).
These prior statements would not be offered for the truth of
the matter asserted – fact X – and therefore would not need
to satisfy Rule 801(d)(1)(B). They would be introduced to
show that the witness did not give statements on direct that
were inconsistent with what he had said before. See Col-
trane, 418 F.2d at 1140. The prior statements would be
admissible on this basis because of the cross-examination.
They would be relevant, under FED. R. EVID. 401, to a matter
of consequence – namely, that the witness made inconsistent
statements about fact X, which would tend to undermine his
 11

credibility. See, e.g., 22 CHARLES ALAN WRIGHT & KENNETH W.
GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5177,
at 143 (1978). In evaluating whether evidence is relevant, ‘‘the
judge must take account of the relationship of the evidence
offered to the evidence already admitted. Some matters are
properly provable only because the opposing party has made
them such.’’ United States v. Russo, 104 F.3d 431, 433 (D.C.
Cir. 1997).
Here, the only prior statements the Government introduced
on redirect that clarified an apparent inconsistency were
those concerning whether Ouaffai knew drug dealers other
than Harrison. These statements were properly admitted
(though not on the ground the District Court recited). The
rest of Ouaffai’s prior statements were not targeted at rebut-
ting the inconsistencies probed during cross-examination, but
served only to show that most of Ouaffai’s testimony on direct
examination was consistent with his earlier statements. It
thus was error to admit them. See FED. R. EVID. 402.
The error does not require reversal. An objecting party
must state the ‘‘specific ground of objection, if the specific
ground [is] not apparent from the context.’’ FED. R. EVID.
103(a)(1). Although Harrison objected several times to the
admission of Ouaffai’s prior consistent statements, not once
did he state the grounds of the objections. Nor is it apparent
from the record that the ground of the objections was rele-
vance. Cf. United States v. Boyd, 55 F.3d 667, 671 n.3 (D.C.
Cir. 1995). Accordingly, we review for plain error. See FED.
R. CRIM. P. 52(b); United States v. Weaver, 281 F.3d 228, 231
(D.C. Cir. 2002). Under this standard of review, a defendant
must show, inter alia, that the error affected his ‘‘substantial
rights’’ – that is, that the error affected the outcome of the
trial. United States v. Olano, 507 U.S. 725, 734 (1993).
Harrison has made no such showing. Other evidence, includ-
ing a significant number of recorded conversations obtained
through wiretaps, established Harrison’s membership in the
conspiracy.
There is another issue concerning Ouaffai’s testimony.
Federal Rule of Evidence 614(b) permits a judge to ‘‘interro-
 12

gate witnesses.’’ Judges enjoy broad latitude regarding the
type of questions asked and the extent of their questioning.
See United States v. Tilghman, 134 F.3d 414, 416 (D.C. Cir.
1998). It is an abuse of discretion, however, for a judge to
ask questions signifying that he finds the witness believable.
See id. Harrison contends the trial judge crossed the line in
the following exchange:
The Court: I have just one question. You under-
stand, Mr. Ouaffai, before your sentencing by Judge
Legg in Baltimore, I have the opportunity to talk to
the Judge. Is there anything you’ve said to this
jury here today that is not the truth, the whole
truth, and nothing but the truth?
Def. Counsel: Objection, Your Honor.
The Court: Overruled.
Ouaffai: I said the truth, Judge.
The Court: Anything you want to change about any
of your testimony?
Ouaffai: No, Your Honor.
No reasonable juror would interpret the court’s questions
as indicating that it believed Ouaffai. If anything, the ques-
tioning suggests that the court disbelieved Ouaffai and was
permitting Ouaffai one last opportunity to change his testimo-
ny after being reminded of his oath and of his impending
sentencing. Although questions from the bench indicating
the court’s disbelief of a witness are also improper, see
Tilghman, 134 F.3d at 416, the error, if there was any,
worked to Harrison’s advantage. Furthermore, even if jurors
interpreted the court’s questions as an endorsement of Ouaf-
fai’s credibility, the court corrected that misimpression by
admonishing the jury to ‘‘examine [Ouaffai’s] testimony with
caution and weigh it with great care’’ because Ouaffai had ‘‘a
motive to testify falsely’’ to secure a lighter sentence, Tr., 2
JA in 01-3037, at 476. See United States v. Sobamowo, 892
F.2d 90, 95 n.3 (D.C. Cir. 1989); cf. Tilghman, 134 F.3d at
421.
 13

C. Tape Recordings
Henry and Harrison claim the District Court erred in
admitting two videotapes and two audiotapes. The video-
tapes capture Lama and undercover FBI Agent Eric Bryant
engaging in drug deals and negotiating a future exchange of
heroin for cocaine. On one of the videotapes, Lama tells
Agent Bryant that they should refer to drugs as clothes. The
audiotapes are of a conversation between Lama and Agent
Bryant in which Lama states that he is going to Washington,
D.C., for a drug deal.
The defendants objected that the tapes were irrelevant and
hearsay. The court overruled the objection, finding that the
recorded transactions were admissible as co-conspirator
statements, see FED. R. EVID. 801(d)(2)(E), and, presumably,
relevant as such. When the defendants later renewed their
objection, the court concluded that the recordings were ad-
missible to establish that Lama was a drug dealer. Harrison
and Henry maintain that the court abused its discretion in
admitting the recordings. See United States v. Evans, 216
F.3d 80, 85 (D.C. Cir. 2000).
A statement offered against a defendant is not hearsay if it
was made by a co-conspirator ‘‘during the course and in
furtherance of’’ a conspiracy between the declarant and the
defendant. FED. R. EVID. 801(d)(2)(E). According to the
Government, because the indictment alleged that Lama dis-
tributed heroin to ‘‘Henry and other coconspirators,’’ any
heroin that Lama distributed during the life of the conspiracy
was in furtherance of the conspiracy. The argument is not
well-taken. The Government must prove by a preponderance
of the evidence that 801(d)(2)(E)’s requirements have been
met. See United States v. Beckham, 968 F.2d 47, 51 n.2 (D.C.
Cir. 1992); see also Bourjaily v. United States, 483 U.S. 171,
175-76 (1987). An indictment may not be offered as evidence
to satisfy that burden. See Brown v. Dep’t of Justice, 715
F.2d 662, 667 (D.C. Cir. 1983). The only affirmative evidence
purporting to show that the transaction between Lama and
Agent Bryant was in furtherance of the conspiracy involving
Henry and Harrison was that Lama eventually sold to Henry
 14

the same heroin that he had previously sought to peddle to
Agent Bryant. But this establishes only that Lama engaged
in drug deals with both Agent Bryant and Henry. We see no
basis to draw the further inference that Lama’s deals with
Agent Bryant and Henry were parts of the same conspiracy.
See United States v. Mathis, 216 F.3d 18, 24 (D.C. Cir. 2000);
Tarantino, 846 F.2d at 1393. The District Court thus erred
in admitting the recordings on this ground.
The Government has another reason why admission was
proper. It argues that the recordings did not constitute
hearsay, but were admissible as ‘‘verbal acts’’ to the extent
they demonstrated that Lama was a drug dealer and provided
context to other conversations in which Lama and his co-
conspirators used clothing terminology to refer to drugs. To
these ends, the recordings were clearly relevant: they made
more probable the existence of the facts of consequence that
Lama supplied drugs to Henry and Harrison (by showing
Lama was a drug dealer) and that the conspirators distribut-
ed drugs (by showing that their mentions of clothes referred
to drugs). See FED. R. EVID. 401.
The ‘‘verbal acts’’ doctrine does not apply here. According
to the advisory committee, a ‘‘verbal act’’ is a statement that
‘‘affects the legal rights of the parties.’’ FED. R. EVID. 801
advisory committee’s note. Such acts are limited to state-
ments that have independent legal significance, such as con-
tractual offers or inter vivos gifts. See 5 JACK B. WEINSTEIN
& MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE
§ 801.11[3] (2d ed. 1997). Neither Lama’s negotiations with
Agent Bryant nor Lama’s statement that they should refer to
drugs as clothes falls within this definition. What the Gov-
ernment appears to mean by the term ‘‘verbal acts’’ is that
the recordings were offered for something other than their
truth. The veracity of the negotiations between Lama and
Agent Bryant was irrelevant. All that mattered was that
Lama engaged in those negotiations. See United States v.
Roach, 164 F.3d 403, 410 (8th Cir. 1998).
 15

As to using the recordings to establish context, the Govern-
ment seems to be saying that all out-of-court statements
offered for context do not constitute hearsay. However, that
a statement provides context to other evidence does not mean
that the statement is not hearsay. All relevant evidence
provides context to the events underlying the charged crime.
See United States v. Bowie, 232 F.3d 923, 928-29 (D.C. Cir.
2000). The question is whether the statement is offered for
its truth. See FED. R. EVID. 801(c); United States v. Jordan,
810 F.2d 262, 264 (D.C. Cir. 1987). Here, the Government
introduced Lama’s statement that Agent Bryant and Lama
should refer to drugs as clothes as evidence of the fact that
Lama used clothing terminology to refer to drugs in other
conversations. The statement is not probative of that fact
unless the Government offered the statement for the truth of
its content. The jury, using the statement, could infer that
Lama and his co-conspirators referred to drugs as clothes
only from the fact that Lama and Bryant referred to drugs as
clothes – that is, through the statement’s content. Cf. United
States v. Sesay, 313 F.3d 591, 599-600 (D.C. Cir. 2002). The
statement thus was hearsay, and its admission was erroneous.
See FED. R. EVID. 802.
The error, however, was harmless. Prosecution expert
Thomas Tyrone testified that Lama and his co-conspirators
used various code words, including clothing terms, to refer to
drugs. The defendants did not object to this testimony.
Accordingly, equivalent information would have been avail-
able to the jury. The error thus did not affect the trial’s
outcome. See FED. R. CRIM. P. 52(a). See also United States
v. Graham, 317 F.3d 262, 267 (D.C. Cir. 2003).
D. Drug Quantity Findings
Henry, Harrison, and McCall appeal the District Court’s
findings at sentencing as to the drug quantity for which each
was responsible. Appellants argue that the District Court
made two errors in calculating the drug quantity for the
purposes of sentencing. First, the trial court assumed that
all of the heroin in the conspiracy was of at least 79% purity.
Second, the trial court multiplied by four the total quantity of
 16

heroin that Lama delivered to Henry over the course of the
conspiracy, on the theory that the heroin would have been
diluted and multiplied fourfold for street distribution. We
find that the District Court clearly erred in the second of
these steps in calculating the drug quantity.
At sentencing, the District Court noted that the record
showed that Lama had delivered at least 11.05 kilograms of
pure heroin to Henry over the course of the conspiracy. See
Findings of Fact and Conclusions of Law for Sentencings
(‘‘Sentencing Findings’’), 5 JA in 01-3026, at 289. However,
the District Court found that Henry and Harrison were
responsible for more than triple that quantity of heroin, 39.4
kilograms. See id. at 291. The District Court arrived at this
quantity pursuant to the following method of calculation.
First, the District Court noted that a July 10, 1998, search
of Henry’s mother’s house had recovered heroin at 79%
purity. See id. at 289-90. Because this was the lowest purity
heroin recovered in the investigation of this drug conspiracy,
the District Court used this level of purity as ‘‘the standard
by which the remainder of the drugs should be judged.’’ See
id. n.13. The District Court thus assumed that all the heroin
that Lama delivered to Henry throughout the conspiracy was
79% pure heroin. The court then reasoned that, with the
exception of the 1.6 kilograms of heroin seized in the investi-
gation that was never diluted, the heroin (the remaining 9.45
kilograms) must have been converted to street quality heroin
and distributed on the Washington D.C. streets. See id. at
290. The court concluded that, in being converted, the heroin
would have been ‘‘cut’’ twice – that is, diluted and multiplied
fourfold. This conclusion was based on the testimony of the
Government’s drug expert, Metropolitan Police Department
Detective Tyrone Thomas, who testified that 20% purity was
the strength that could be sold on the street without undue
risk of harm to the heroin user. See id. at 291. Thus, 79%
pure heroin would have to be diluted and multiplied fourfold
to bring it down to the 20% strength suitable for sale to
customers on the street. See id.
 17

The court thus multiplied the 9.45 kilograms of heroin by
four, to get 37.8 kilograms, and then to that quantity added
the 1.6 kilograms that were never diluted, to arrive at a total
of 39.4 kilograms of heroin for which Henry and Harrison
were each responsible. See id. Under § 2D1.1(c)(1) of the
U.S. Sentencing Guidelines, which applies to 30 kilograms or
more of heroin, this quantity resulted in a base offense level
of 38 for Henry and Harrison. See id. The quantity for
which McCall was held responsible during the shorter period
of his participation in the conspiracy was calculated accord-
ingly. See id. at 318.
In reviewing appellants’ challenge to the District Court’s
drug quantity findings, this court reviews the factual findings
supporting a sentence under the Sentencing Guidelines for
clear error. United States v. Graham, 162 F.3d 1180, 1183
(D.C. Cir. 1998). Facts at sentencing must be proven by a
preponderance of the evidence. United States v. Jackson,
161 F.3d 24, 26 (D.C. Cir. 1998). We reverse a factual finding
supporting a sentence under the Sentencing Guidelines ‘‘only
if we are left with a definite and firm conviction that it is
mistaken.’’ United States v. Toms, 136 F.3d 176, 187 (D.C.
Cir. 1998) (citation and internal quotation marks omitted).
Appellants contend that there was an error in each step of
the District Court’s calculation of the drug quantity. First,
appellants dispute the District Court’s assumption that all of
the heroin that Lama delivered to Henry was of the uniformly
high quality of 79% purity as the heroin recovered in the July
10, 1998 search of Henry’s mother’s house. Appellants point
out that apart from that heroin, nobody ever testified about
the purity level of the heroin that Lama supplied. Appellants
contend that the evidence compels a finding that the remain-
der of the deliveries of heroin were of lower quality. See
Appellants’ Br. in 01-3026, at 65-70.
For example, appellants point out that Lama testified that
he agreed to deliver heroin to Henry for $80,000/kg. But
upon Lama’s April 1997 shipment of heroin, Henry com-
plained of the inferior quality of the shipment. Lama then
reduced his price to Henry from $80,000/kg to approximately
 18

$47,000/kg. Appellants infer that the price reduction must
have been because the heroin was of lower quality. A bigger
price reduction was given for Lama’s March 9, 1998 delivery
of heroin. Henry paid between $25,000/kg to $32,000/kg and
expressed concern to Lama over the quality. See Appellants’
Br. in 01-3026, at 66-68. The Government disputes that
Henry paid such a low price, pointing to Lama’s testimony
that this payment was merely an installment of the total
price. See Appellee’s Br. in 01-3026, at 110 n.35. Around
March 27, 1998, Henry again complained in intercepted phone
calls about the shipment’s purity. See Appellants’ Br. in
01-3026, at 69-70.
We do not think that appellants have offered any plausible
evidence that the purity levels of heroin during the course of
the conspiracy were lower than 79%. Henry’s recorded
complaints about the quality of the deliveries and Lama’s
price reductions do not establish that the quality of any
shipment was lower than 79%, merely that Henry was unhap-
py with the purity level of the shipments. We do not even
know whether Henry considered 79% good or poor quality.
Appellants present no record evidence of the price per kilo-
gram of 79% pure heroin, from which we could infer the
quality of the reduced-price shipments. Henry may have
complained and Lama may have reduced the price, simply
because the heroin was not of the highest quality – that is,
more than 79%.
Second, appellants argue that, even assuming that all of the
heroin was 79% pure, it was not routinely diluted fourfold to
20% for street sale. Appellants cite evidence presented at
trial that the heroin packaged for street distribution that was
actually seized consisted of 746 baggies of 27-29% pure her-
oin. Since these seized baggies were the only evidence of the
purity level of the heroin distributed on the street, appellants
contend that the heroin for street sale was not multiplied
fourfold, but rather by a factor of approximately 2.8. See id.
at 70-71; Reply Br. in 01-3026, at 25-26.
We find this second argument convincing. The only evi-
dence of heroin packaged and ready for street distribution
 19

actually seized in the investigation was 27-29% pure, not 20%
pure. Assuming heroin of 79% purity, this indicates that the
heroin was not diluted fourfold, but by a factor substantially
smaller than four. In the face of this argument, the Govern-
ment in its brief cites Detective Thomas’ testimony at trial
that 28% pure heroin ‘‘is much closer to what drug dealers
are capable of injecting,’’ Tr., 1 JA in 01-3026, at 445, and that
dealers purchase drugs on the advice of a ‘‘tester TTT an old-
time heroin user who has the body tolerance to accept high
doses of heroin,’’ Tr., 1 JA in 01-3037, at 91. The Govern-
ment argues that the sentencing court could have concluded
that the baggies of 27-29% heroin seized were ‘‘testers’’ that
did not represent the purity of the heroin that was routinely
distributed at the street level. See Appellee’s Br. in 01-3026,
at 117-18. This argument, however, was not presented to the
District Court and cannot be considered for the first time on
appeal. See United States v. Hylton, 294 F.3d 130, 135 (D.C.
Cir. 2002). In any event, it seems very unlikely that the 746
baggies of 27-29% pure heroin found were all testers for other
dealers rather than for street sale, and no Government wit-
ness even suggested this.
The Government also cites a recorded conversation be-
tween McCall and Harrison, in which McCall said ‘‘I usually
get four step done not three,’’ to argue that we could infer
that the drugs were multiplied fourfold. See Appellee’s Br. in
01-3026, at 112 (citing 2 JA in 01-3026, at 195). However, the
sentencing court did not rely upon this recorded conversation
in finding that the heroin was multiplied fourfold. Thus, we
do not consider it.
We find that, in light of the 27-29% purity of the baggies
packaged for street distribution that were actually seized in
this case, the District Court had little basis for assuming that
the heroin was diluted to 20% purity and multiplying the
quantity by four. The District Court committed clear error in
so doing. This fourfold multiplication of the drug quantity
improperly increased Henry’s, Harrison’s, and McCall’s base
offense levels under U.S.S.G. § 2D1.1. We vacate appellants’
sentences and remand to the District Court for a new calcula-
tion of the drug quantity.
 20

E. Scope of McCall’s Agreement
Appellant McCall challenges the District Court’s finding at
sentencing that he was responsible, with Henry, Harrison,
and Stover, for the full scope of the conspiracy rather than
just for the drugs that he personally purchased from Harri-
son. We find that two of the four factors on which the
District Court relied in concluding that McCall was responsi-
ble for the full scope of the conspiracy were erroneous, and
we remand to the District Court for a new finding as to the
scope of McCall’s conspiratorial agreement.
McCall’s participation in the conspiracy ran from April 17
to July 10, 1998. At sentencing, the Government argued that
McCall was equally responsible with Henry, Harrison, and
Stover for all of the heroin that Lama sold to Henry during
the period of McCall’s membership. See Gov’t’s Proposed
Findings of Fact and Conclusions of Law, 5 JA in 01-3026, at
238-39. McCall argued that the scope of his agreement
during the 12 weeks of his participation was limited to an
agreement to buy heroin from Harrison that he could cut,
package, and sell on the street, and that he was not involved
in the Lama-Henry or Henry-Harrison transactions. See
Defendant McCall’s Memorandum in Aid of Sentencing, 5 JA
in 01-3026, at 145-48.
The District Court rejected the contention that the scope of
McCall’s participation was limited merely to buying drugs
from Harrison and distributing them on the street. The
court found that McCall
operated at a level in this conspiracy which made the
distribution of the heroin delivered to Henry by
Lama in 1998 reasonably foreseeable to him and
within the scope of jointly undertaken criminal activ-
ityTTTT McCall was in fact a full participant in this
conspiracy and is thus responsible for its entire
scope during his membership.
Sentencing Findings, 5 JA in 01-3026, at 316. The court
based this finding on four facts, which ‘‘all combine to per-
suade the Court that the defendant’s agreement was not so
 21

limited as he now asserts’’: (1) McCall ‘‘accompanied Harri-
son to Baltimore for Harrison’s early discussions with Dyta-
nia Cannady concerning Mr. Harrison’s Baltimore efforts
including the initial discussions with Troy Schumpert’’; (2)
The very high ‘‘purity, packaging, and amount of some of the
drugs recovered in the search of McCall’s premises’’ indicated
that ‘‘McCall was not only purchasing drugs from Harrison
and Stover that were already cut and packaged but was also
being supplied with uncut drugs which McCall would then cut
and package’’; (3) McCall ‘‘had direct knowledge that Harri-
son distributed heroin to others’’; and (4) McCall had tried to
contact Troy Schumpert to collect money owed to Harrison.
Id. at 316-17. The District Court’s conclusion that McCall
was a full member of the conspiracy affected his sentence by
increasing McCall’s base offense level pursuant to U.S.S.G.
§ 2D1.1.
In the case of jointly undertaken criminal activity, the
Sentencing Guidelines provide that, for the purpose of deter-
mining the base offense level, the court must take into
account ‘‘all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activ-
ity.’’ U.S.S.G. § 1B1.3(a)(1)(B). See also United States v.
Booze, 108 F.3d 378, 381 (D.C. Cir. 1997) (stating that the
district court must ‘‘ascertain the quantity of drugs that could
be attributed to appellant by determining whether the acts at
issue were within the scope of the conspiracy in which appel-
lant had agreed to participate, and whether the acts were
foreseeable to him’’). The scope of a defendant’s conspiracy
‘‘is not necessarily the same as the scope of the entire
conspiracy, and hence relevant conduct is not necessarily the
same for every participant.’’ U.S.S.G. § 1B1.3, comment.
(n.2). ‘‘A jury verdict convicting the defendants of partic-
ipation in a single conspiracy does not obviate the need for
TTT individualized findings [as to the scope of a defendant’s
conspirational agreement] by the sentencing court.’’ United
States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995). The
District Court ‘‘must make ‘individualized findings TTT linking
each appellant’s scope of participation in the conspiracy with
the quantum of drugs attributed to [him].’ ’’ Id. (quoting
 22

United States v. Edmond, 52 F.3d 1080, 1105 (D.C. Cir.
1995)).
McCall contends that he should have been held responsible
only for the drugs that he personally purchased from Harri-
son, because he was not involved in the Lama-Henry or
Henry-Harrison sales; had never met or spoken with Stover;
and had no dealings with any Baltimore conspirators, other
than meeting with Cannady a few times and attempting to
collect a drug debt from Schumpert on Harrison’s behalf.
McCall contends that the District Court erred with respect to
two of the four factors on which the court based its finding
that McCall was responsible for the entire scope of the
conspiracy rather than simply a limited agreement with Har-
rison. See Appellants’ Br. in 01-3026, at 84-90.
First, McCall claims, and the Government concedes, that
the District Court’s finding that McCall accompanied Harri-
son to Baltimore for early discussions with Cannady or
Schumpert was not directly supported by the evidence at trial
and was therefore erroneous. See id. at 85-86; Appellee’s Br.
in 01-3026, at 132-33.
Second, McCall contends that the court’s finding that
McCall had direct knowledge that Harrison distributed heroin
to others was erroneous, because there was no evidence that
McCall knew, met, or spoke with any of Harrison’s other
customers, with the exception of Cannady. The intercepted
phone conversations in which McCall participated did not
involve any conspirator other than Harrison. See Appellants’
Br. in 01-3026, at 86. According to McCall, he ‘‘was in the
dark about everyone except his source, Charles Harrison.’’
Reply Br. in 01-3026, at 31.
The Government cites three-way telephone calls between
Stover, Harrison, and McCall, see Appellee’s Br. in 01-3026,
at 138-39, but McCall points out – without refutation from the
Government – that Stover’s presence on the line was un-
known to McCall, see Reply Br. in 01-3026, at 32. Additional-
ly, the Government cites telephone ‘‘conversations, in which
the major participants in the conspiracy, including McCall,
consulted about TTT the various searches,’’ Appellee’s Br. in
01-3026, at 140, but McCall points out that he informed only
 23

Harrison of the search of his own apartment and said nothing
about any searches of other premises, see Reply Br. in 01-
3026, at 33. The Government is unable to point to any
concrete evidence that McCall had ‘‘direct knowledge’’ of
Harrison’s distribution of heroin to others. We conclude that
the District Court’s finding that McCall had such direct
knowledge cannot stand on the record before us.
Finally, McCall argues that the remaining two factual
findings on which the District Court relied – that McCall
bought a high quantity of high purity heroin with the inten-
tion of cutting and packaging it for distribution, and that he
attempted to collect from Schumpert on a drug debt owed to
Harrison – are insufficient to support the District Court’s
conclusion that McCall’s agreement to purchase heroin from
Harrison encompassed the full scope of the conspiracy. See
id.
The District Court relied on four factors to conclude that
McCall was responsible for the full scope of the conspiracy.
The Government concedes that the first of these factors –
that McCall accompanied Harrison to Baltimore for early
discussions with Cannady or Schumpert concerning Harri-
son’s Baltimore efforts – was erroneous. We find that the
third factor – that McCall had direct knowledge that Harrison
distributed heroin to others – is not supported by the evi-
dence or any finding of the District Court. We are unsure
whether the two factors that remain – the high purity and
quantity of the heroin found in McCall’s premises, and
McCall’s attempt to collect a drug debt from Schumpert – are
by themselves sufficient to support the conclusion that McCall
was responsible for the full scope of the conspiracy. We do
not know what the District Court would conclude as to the
scope of McCall’s agreement, once erroneous factors are
removed from consideration. We therefore remand to the
District Court for a new finding not inconsistent with this
opinion as to the scope of McCall’s agreement.
F. McCall’s Role in the Conspiracy
Next, McCall challenges the two-point managerial enhance-
ment he received under U.S.S.G. § 3B1.1(c). Section 3B1.1
provides:
 24

§ 3B1.1. AGGRAVATING ROLE
Based on the defendant’s role in the offense, in-
crease the offense level as follows:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more partici-
pants or was otherwise extensive, increase by 4
levels.
(b) If the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal
activity involved five or more participants or was
otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, man-
ager, or supervisor in any criminal activity other
than described in (a) or (b), increase by 2 levels.
The District Court found McCall was a manager in the
conspiracy because he ‘‘participated with Harrison’s drug-
related activities beyond the point of merely purchasing
drugs,’’ specifically noting that he ‘‘operated in close proximi-
ty to Harrison, he handled drugs of a very high purity, and he
assisted Harrison with some of Harrison’s drug-related activi-
ties.’’ Sentencing Findings, 5 JA in 01-3026, at 319. In
assigning McCall a managerial role, the court invoked Appli-
cation Note 9 to U.S.S.G. § 2D1.1 which states:
The purity of the controlled substance, particularly
in the case of heroin, may be relevant in the sentenc-
ing process because it is probative of the defendant’s
role or position in the chain of distribution. Since
controlled substances are often diluted and combined
with other substances as they pass down the chain of
distribution, the fact that a defendant is in posses-
sion of unusually pure narcotics may indicate a
prominent role in the criminal enterprise and prox-
imity to the source of the drugs. As large quantities
are normally associated with high purities, this fac-
tor is particularly relevant where smaller quantities
are involved.
 25

Under this provision, the District Court properly considered
the 86% purity level of the 12.1 grams of heroin seized (along
with 9.5 grams of a cutting agent) from McCall’s apartment
as probative of his managerial role in Harrison’s distribution
ring. McCall may properly be viewed as a manager who
received drugs from Harrison, prepared them (in some cases
by cutting them to a salable level) for distribution on the
street through his network of ‘‘runners’’ and afterward col-
lected the proceeds from the runners. See United States v.
Strothers, 77 F.3d 1389, 1393-94 (D.C. Cir. 1996) (affirming
upward supervisory adjustment for two conspirators who
‘‘directed and profited from numerous drug sales carried out
by subordinate ‘runners’ ’’); cf. Graham 162 F.3d at 1184
(reversing § 3B1.1(b) enhancement where record was ‘‘devoid
of any evidence that [defendant] received extra compensation
for serving as a manager, disciplined any lower ranking
member of the conspiracy, altered the conspiracy’s policies or
procedures in any respect, provided guidance to senior man-
agers or subordinates, issued any orders on behalf of the
conspiracy, or otherwise held himself out as a link in the
chain of command’’). Accordingly, we find no error in the
two point enhancement the court assigned McCall under
U.S.S.G. § 3B1.1(c).

III. CONCLUSION
For the foregoing reasons, we affirm the District Court on
all but two of its judgments. First, because we find that the
District Court erred in calculating the drug quantity, we
vacate the sentences of Henry, Harrison, and McCall, and
remand for a new calculation of the drug quantity. Second,
because two of four factors supporting the District Court’s
finding on the scope of McCall’s conspiratorial agreement
were erroneous, we remand to the District Court for a new
finding on the scope in the absence of those erroneous
factors. We have considered all of appellants’ other claims,
including those not discussed in this opinion, and find them to
be without merit.