United States v. Reliford

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-30253

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CLEVELAND R. RELIFORD; JOHNNY CLINTON;
JOHNNY WASHINGTON; ROBERT W. CLARK, JR.,

Defendants-Appellants.

Appeals from the United States District Court
For the Western District of Louisiana
April 14, 2000

Before KING, DUHÉ, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendants Robert Clark, Johnny Washington, Cleveland

Reliford, and Johnny Clinton appeal following their conviction by

jury trial on federal charges arising from their drug trafficking

activities in and around the Shreveport, Louisiana area. We affirm

in part, reverse in part, and remand for entry of a modified

judgment.

I.

Clark, Washington, Reliford, and Clinton were charged, along

with six other individuals, with conspiring to distribute crack
cocaine and with distributing crack cocaine. Shortly after trial

began, the government presented a redacted form of the indictment.

The redacted indictment named only defendants Clark, Washington,

Reliford, and Clinton, and dismissed all charges against the other

six defendants, some of whom had already pleaded guilty. Count 1

of the redacted indictment charged the four named defendants with

conspiring to distribute 50 grams or more of crack cocaine between

June 1994 and May 1997, in violation of 21 U.S.C. § 841(a)(1). The

remaining counts of the eleven count indictment charged the actual

distribution of crack cocaine on various dates.

Defendant Clark was charged, in addition to the conspiracy

count, with a single count of attempting to distribute a quantity

of crack cocaine on or about March 10, 1995 (count 10), in

violation of 21 U.S.C. §§ 841(a)(1) & 846. Defendant Washington

was charged, in addition to the conspiracy count, with several

counts of distributing five grams or more of crack cocaine on

September 28, 1994 (count 3), October 5, 1994 (count 4), October

21, 1994 (count 5), November 1, 1994 (count 6), January 24, 1995

(count 7), and January 31, 1995 (count 9), in violation of 21

U.S.C. § 841(a)(1). Defendant Washington was also charged with one

count of distributing 50 grams or more of crack cocaine on January

27, 1995 (count 8), in violation of 21 U.S.C. § 841(a)(1), and with

one count of attempting to distribute a quantity of crack cocaine

on March 10, 1995 (count 10), in violation of 21 U.S.C. § 841(a)(1)

& 846. Defendant Reliford was charged, in addition to the

conspiracy count, with three counts of distributing five grams or

2
more of crack cocaine on September 22, 1994 (count 2), September

28, 1994 (count 3), and November 1, 1994 (count 6), in violation of

21 U.S.C. § 841(a)(1). Defendant Clinton was charged, in addition

to the conspiracy count, with one count of distributing a quantity

of cocaine on May 27, 1997 (count 11), in violation of 21 U.S.C. §

841(a)(1). In addition, each of the substantive distribution

counts alleged in counts 2 through 11 contained an allegation that

the defendants aided and abetted the commission of the charged

offense, in violation of 18 U.S.C. § 2.

Trial began November 30, 1998. On December 2, 1998, the jury

returned guilty verdicts on all charged counts. Shortly

thereafter, the defendants were sentenced, and this appeal timely

followed.

On appeal, each of the defendants presents a number of

arguments intended to establish that there was insufficient

evidence to support their convictions. In addition, defendant

Washington challenges certain rulings related to the admission of

what he considers to be unduly prejudicial evidence. Finally,

defendants Clinton and Reliford dispute certain aspects of the

district court’s calculation of their guideline sentences. Each

issue will be addressed in turn.

II.

Each of the defendants challenges the district court’s denial

of their timely filed motions for judgment of acquittal. We review

the district court’s denial of a criminal defendant’s motion for

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judgment of acquittal de novo. See United States v. Medina, 161

F.3d 867, 872 (5th Cir. 1998), cert. denied, 119 S. Ct. 1344

(1999). Because such a motion is in effect a challenge to the

sufficiency of evidence used to convict, we view the evidence, any

inferences to be drawn from the evidence, and any required

credibility determinations in a light most favorable to the guilty

verdict. See FED. R. CRIM. P. 29(a); Medina, 161 F.3d at 872. The

jury’s verdict must be affirmed if “a rational trier of fact could

have found the essential elements of the offense beyond a

reasonable doubt.” Id.

All of the defendants were convicted on the single count

alleging conspiracy to distribute crack cocaine in violation of

§ 841(a)(1) and § 846. Defendants Washington, Reliford, and

Clinton were also convicted on additional substantive counts

alleging distribution of crack cocaine on certain dates, in

violation of § 841(a)(1). To prove a drug conspiracy under § 846,

the government is required to establish: (1) “the existence of an

agreement between two or more persons to violate the narcotics

laws, (2) the defendant’s knowledge of the agreement, and (3) the

defendant’s voluntary participation in the conspiracy.” United

States v. Gallardo-Trapero, 185 F.3d 307, 316-17 (5th Cir. 1999),

cert. denied sub nom., Hernandez v. United States, 120 S. Ct. 961

(2000). To prove drug distribution under § 841(a)(1), the

government is required to establish that each defendant

(1) “knowingly (2) distributed (3) the controlled substance” as

alleged in the specific counts of the indictment. United States v.

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Sotelo, 97 F.3d 782, 789 (5th Cir. 1996). We have construed the

term "distribute" to include a broad scope of conduct. See United

States v. Lechuga, 888 F.2d 1472, 1478 (5th Cir. 1989). “For

example, distribution may consist of acts perpetrated in

furtherance of a transfer or sale, such as arranging or supervising

the delivery.” Id. (internal quotations omitted).

Defendants Clark and Washington were also charged with one

count of attempting to distribute crack cocaine. To prove

attempted drug distribution under § 841(a)(1) and § 846, the

government must show that each defendant engaged in conduct

constituting a substantial step toward completing the distribution

offense. See United States v. Armendariz-Mata, 949 F.2d 151, 154

(5th Cir. 1991).

We note that the defendants’ convictions on the substantive

counts may also be supported with proof that they aided and abetted

the substantive offense charged in the relevant count. To prove

aiding and abetting, the government must show that the particular

defendant became associated with, participated in, and in some way

acted to further the distribution of crack cocaine alleged in the

particular count of the indictment. See United States v. Sorrells,

145 F.3d 744, 753 (5th Cir. 1998); United States v. Chavez, 947

F.2d 742, 745-46 (5th Cir. 1991). “Association means that the

defendant shared in the criminal intent of the principal."

Sorrells, 145 F.3d at 753 (internal quotations omitted).

“Participation means that the defendant engaged in some affirmative

conduct designed to aid the venture.” Id. “Although relevant,

5
mere presence and association are insufficient to sustain a

conviction of aiding and abetting.” Id.

Given the number of defendants and counts of conviction

involved in this case, we will begin with a discussion of the

record evidence, as it relates to each count of conviction, before

proceeding to address each of the defendants’ specific arguments.

III.

A. “The Hole”

Most of the drug transactions made the basis of the indictment

in this case occurred on or near a short, dead-end block of Millen

street in an isolated, semi-rural area of Shreveport, Louisiana.

The location was popularly referred to as “the Hole.” There are

about eight or nine houses on the street, some in disrepair.

Defendant Clinton or his family owned several of the houses. About

four of the houses were used for the drug trafficking activities

conducted by the defendants in this case.

B. The Traffic Stop and the Ensuing Investigation

Shreveport police officer David Derrick testified about how

and why police began investigating the defendants’ involvement in

drug trafficking activities. Officer Derrick testified that he

stopped a car registered to defendant Clinton and driven by

defendant Clark on June 13, 1994, for a traffic violation. Officer

Derrick, who was familiar with Clark from prior contact with him,

testified that Clark initially failed to stop the car, but

eventually pulled into a gas station parking lot. As Officer

6
Derrick approached Clark’s car, Clark’s passenger, Sammy Sherman,

exited the car holding a brown paper bag. Officer Derrick

instructed Sherman to return to the car, but Sherman fled on foot.

Defendant Clark used that opportunity to likewise flee the scene.

Officer Derrick was able to apprehend Sherman and to recover the

brown paper bag, which was determined to contain 18 ounces of

cocaine. Officer Derrick was unable to apprehend defendant Clark.

Officer Derrick reported the incident to Shreveport police

officer Mike Tong, who was assigned to a task force run jointly by

the Drug Enforcement Agency (DEA) and the Shreveport police

department. Officer Tong testified that he began an investigation

into defendant Clark’s drug trafficking activities as a result of

Officer Derrick’s report. Officer Tong was the primary agent

responsible for the undercover investigation in this case.

Officer Tong recruited several individuals to work undercover

in the course of the investigation. Shreveport police officer

Gregory Washington made several purchases from persons selling

drugs in the Hole. Officer Washington made controlled buys at the

Hole on September 22, 1994, September 28, 1994, October 5, 1994,

October 21, 1994, and November 1, 1994. After each of these

purchases, Officer Washington would rendezvous with Officer Tong or

another agent to deliver the crack cocaine purchased. The

individual packages of crack cocaine purchased were introduced at

trial and identified as the cocaine purchased on the dates alleged

for each of the discrete purchases.

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C. The September 22, 1994 Purchase - Count 2

Officer Washington testified about the September 22, 1994

purchase made the basis of the distribution charge against

defendant Reliford in count 2 of the indictment. Officer

Washington testified that he and a confidential informant drove to

the Hole, and that the confidential informant introduced Officer

Washington to defendant Reliford. Officer Washington then

purchased “two quarter ounces,” which converts to slightly more

than 14 grams, directly from defendant Reliford. Officer

Washington testified that he also observed defendant Clark standing

outside at the site of the sale on September 22, 1994.

Officer Tong testified that the September 22, 1994 purchase

was monitored via a transmitter carried by Officer Washington.

During the course of the transaction, the seller identified

himself. There is some conflict in the record concerning the exact

words the seller used. Officer Washington testified that the

seller identified himself with the full name “Cleveland Reliford.”

Officer Washington later testified that the seller used the name

“Cleve.” Officer Tong testified as to his recollection that the

seller identified himself using the name “Big Cleve.” There is

likewise some confusion in the record concerning whether a tape

recording was made of the purchase. Both Officer Washington and

Officer Tong initially testified that such a tape would have been

made. When Officer Tong testified, defense counsel objected,

noting that no such tape had been produced during discovery. At

that point, Officer Tong recanted, stating that he had been

8
confused and that such tapes were never made when a confidential

informant was used in a joint investigation involving the City.

D. The September 28, 1994 Purchase - Count 3

Officer Washington testified that he made a second purchase at

the Hole on September 28, 1994. This second purchase was made the

basis of the distribution charge against defendants Reliford and

Washington in count 3 of the indictment. On this occasion,

defendant Reliford introduced Officer Washington to defendant

Washington, identifying defendant Washington as “Gold Brick.”

After some negotiation as to quantity and price, Officer Washington

purchased half an ounce, or slightly in excess of 14 grams,

directly from defendant Washington. Officer Washington testified

that he knew defendant Reliford to be the person who facilitated

the purchase of drugs on September 28, 1994. Although he did not

know defendant Washington’s proper name at the time of the

purchase, Officer Washington testified that he “dealt with”

defendant Washington on that date.

E. The October 5, 1994 Purchase - Count 4

Officer Washington testified that he made a third purchase at

the Hole on October 5, 1994. This third purchase was made the

basis of the distribution charge against defendant Washington in

count 4 of the indictment. On this occasion, Officer Washington

drove to the Hole with his confidential informant. The

confidential informant contacted defendant Washington, and both the

confidential informant and Officer Washington were instructed to

come inside one of the houses. Once inside the house, defendant

9
Washington went into another room and returned with a PVC pipe

filled with crack cocaine. Officer Washington then purchased an

ounce of crack cocaine, or approximately 28 grams, directly from

defendant Washington. While the transaction was proceeding,

someone posted as a lookout came inside and reported his fear that

someone was observing the transaction. Officer Washington

testified that he believed the lookout had spotted one of the

surveillance officers. Officer Washington completed the

transaction as quickly as possible and was leaving the area when he

was approached by defendant Clinton. Defendant Clinton told

Officer Washington that Officer Washington would be “dealing with”

defendant Clinton from now on. Although Officer Washington did not

know defendant Washington’s name at the time of the October 5, 1994

purchase, Officer Washington confirmed at trial that the October 5,

1994 purchase was made from defendant Washington.

F. The October 21, 1994 - Count 5

Officer Washington testified that he made a fourth purchase at

the Hole on October 21, 1994. This fourth purchase was made the

basis of the distribution charge against defendant Washington in

count 5 of the indictment. On this occasion, the confidential

informant spoke privately with defendant Washington, while Officer

Washington remained in the car. Afterwards, defendant Washington

consulted defendant Clark, and then both defendant Washington and

defendant Clark approached the door to one of the houses.

Defendant Clark went in the house and defendant Washington remained

posted outside on the porch. Next, defendant Washington told

10
Officer Washington to go wait in a different house next door.

Officer Washington did so, and a few minutes later, defendant

Washington came inside the second house with a package of crack

cocaine. Officer Washington weighed the package and discovered

that it was five grams short. Defendant Washington then left the

house, and returned shortly thereafter with a package containing

the additional crack cocaine. In addition to defendants Washington

and Clark, Officer Washington also observed defendant Reliford with

the others at the Hole on this occasion.

G. The November 1, 1994 Purchase - Count 6

Officer Washington testified that he made a fifth purchase of

crack cocaine at the Hole on November 1, 1994. This fifth purchase

was made the basis of the distribution charge against defendants

Reliford and Washington in count 6 of the indictment. On this

occasion, Officer Washington went to the location with his

confidential informant. Officer Washington remained in the car

while the confidential informant went inside one of the houses to

make contact. Shortly thereafter, defendants Reliford and

Washington exited the house together. Defendant Reliford proceeded

to the nearby wood line and returned with a package, which he

handed to defendant Washington. Defendant Washington then went

back inside the house, while defendant Reliford remained posted

outside. A few minutes later, Officer Washington was asked to come

inside the house, where he found that defendant Washington had laid

crack cocaine out on the table. Officer Washington weighed out

approximately 24 grams, for which he paid $1000.

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H. The January 24, 1995 Purchase - Count 7

Shreveport police officer Kevin Anderson also made undercover

purchases at the Hole during the course of the investigation.

Officer Tong testified that Officer Anderson made controlled

purchases of crack cocaine on January 24, 1995, January 27, 1995,

and January 31, 1995. After each of the controlled purchases,

Officer Anderson would rendezvous with Officer Tong or another

agent to deliver the crack cocaine purchased. The individual

packages of crack cocaine purchased were introduced at trial and

identified as the cocaine purchased on the dates alleged for each

of the discrete purchases. In addition, Officer Anderson made an

aborted attempt to purchase crack cocaine at the Hole on March 10,

1995. The March 10, 1995 attempt serves as the basis for the

attempt count alleged against defendants Clark and Washington in

count 10.

Officer Anderson testified that the January 24, 1995 purchase

was made at the Hole. This purchase was made the basis of the

distribution charge against defendant Washington in count 7 of the

indictment. On that occasion, Officer Anderson and a confidential

informant drove to the Hole. Officer Anderson testified that as he

approached he observed defendant Clark, whom he recognized from

case file photographs, standing in the roadway. Once there,

defendant Washington asked Officer Anderson and the confidential

informant to go into one of the houses in the Hole. Once inside,

Officer Anderson observed crack cocaine on a television table.

12
Defendant Washington confirmed to Officer Anderson that there was

about two ounces of crack cocaine lying out on the table.

At some point, the confidential informant left the house to

investigate a car that had approached the Hole at a high rate of

speed. The confidential informant returned with the news that he

overheard defendant Clinton tell defendant Clark that there were

police in the area. Officer Anderson quickly concluded a

transaction for approximately two ounces of crack cocaine and left.

I. The January 27, 1995 Purchase - Count 8

Officer Anderson testified that he made a second controlled

purchase on January 27, 1995. This second purchase was made the

basis of the distribution charge against defendant Washington in

count 8 of the indictment. On that date, Officer Anderson drove to

the Hole with the confidential informant, intending to buy three

ounces of crack cocaine. Office Anderson approached defendant

Washington, who was standing outside one of the houses in the Hole.

Defendant Washington informed Officer Anderson that there could not

be any purchase until “Chickenman,” who was known by Officer

Anderson to be defendant Clark, returned to the Hole. Defendant

Washington advised Officer Anderson to return in 15 minutes. When

Officer Anderson and the confidential informant returned, defendant

Clark was standing outside. Officer Anderson testified that

defendant Clark seemed “kind of eerie,” and that defendant Clark

noticeably turned and walked away from Officer Anderson when they

got out of the car. At that point, defendant Washington approached

Officer Anderson and the confidential informant and told them that

13
there could not be any purchase made on that date, and they left

the area.

Shortly thereafter, and in the presence of Officer Anderson,

the confidential informant telephoned Henry McCullough (a.k.a.

Nake). McCullough was an indicted co-conspirator in this case, but

he pleaded guilty shortly before trial and then testified in

exchange for the promise of the government’s assistance in

obtaining a reduced sentence. The confidential informant told

McCullough that he was in the market to buy some crack cocaine.

McCullough asked the confidential informant why he did not go

directly to defendant Clark. The confidential informant told

McCullough that defendant Clark did not seem to trust him.

McCullough agreed to help.

McCullough then called defendant Clark and told him about the

prospective deal. Defendant Clark was hesitant to do the deal, but

eventually agreed after checking out a neutral place for the

transaction, a service station where McCullough apparently worked

or had some business. Defendant Clark sent the crack cocaine back

to the service station with defendant Washington. When defendant

Washington arrived, McCullough collected the crack cocaine from him

in one car, delivered it to Officer Anderson in a second car, and

then delivered the cash payment to defendant Washington in the

first car. Officer Anderson corroborated McCullough’s testimony

that the confidential informant was able to set up a purchase from

defendant Clark’s organization using defendant Washington as the

courier and co-conspirator McCullough as the go-between. While

14
McCullough was somewhat fuzzy on the exact date of the transaction,

Officer Anderson clearly testified that the transaction occurred on

January 27, 1995.

J. The January 31, 1995 Purchase - Count 9

Officer Anderson testified that he made a third controlled

purchase from defendant Clark’s organization on January 31, 1995.

This third purchase was made the basis of the distribution charge

against defendant Washington in count 9 of the indictment. On this

occasion, Officer Anderson went to the Hole alone. Once there,

Officer Anderson approached defendant Washington and explained that

he needed an ounce of crack cocaine. Defendant Washington then

retrieved crack cocaine from the glove box of a car parked on

blocks. Afterwards, Officer Anderson accompanied defendant

Washington into one of the houses, where Officer Anderson weighed

the crack cocaine and consummated the deal. During the course of

the transaction, Officer Anderson asked defendant Washington

whether it would be okay for him to come to the Hole alone, without

the confidential informant. Defendant Washington told Officer

Anderson that defendant Clark would prefer that arrangement because

that way defendant Clark would not have to pay the confidential

informant a portion of the profits.

K. The March 10, 1995 Purchase - Count 10

Officer Anderson testified that he attempted to make another

purchase from defendant Clark’s organization on March 10, 1995.

This attempted purchase was made the basis of the attempted

distribution charge against defendants Clark and Washington in

15
count 10 of the indictment. On this occasion, Officer Anderson

complied with defendant Washington’s advice by going to the Hole

alone. Once there, Officer Anderson told his contact that he

wanted to buy three ounces. Officer Anderson’s contact had to get

permission from defendant Clark before the deal could proceed.

Officer Anderson testified that he saw defendant Clark tell the

contact that the deal was possible, but that defendant Clark would

have to go get more crack cocaine to fill Officer Anderson’s order.

Defendant Clark also gave his permission for the deal to proceed.

Shortly thereafter, a fight broke out between unidentified people

in the Hole. Surveillance agents monitoring the purchase via

Officer Anderson’s transmitter thought he was in trouble and rushed

in to rescue him, which prevented the sale from proceeding further.

Officer Tong also testified concerning the attempted purchase

on March 10, 1995. Officer Tong testified that there was aerial

surveillance of the area, and that Officer Anderson was carrying a

transmitter. Officer Tong corroborated Officer Anderson’s

testimony that the sale was proceeding normally when agents began

hearing curse words and what sounded like a fight on the

transmitter. Officer Tong therefore made the decision to send in

reinforcements to protect Officer Anderson. As Tong entered the

isolated, dead-end block, both he and Officer Anderson observed

defendant Clark backing out of the Hole in a car at a high rate of

speed. Officer Anderson testified that he also saw defendants

Washington and Clinton at the scene on that date.

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L. The May 27, 1995 Purchase - Count 11

Officer Tong also used the assistance of a confidential

informant, who is identified in the record as Aaron Perkins.

Perkins lived in the neighborhood and was aware of the organization

and the individuals involved in the organization. Perkins

volunteered his services by contacting the police. Perkins told

the police that drug sales were also occurring at defendant

Clinton’s house, which was less than one mile from the Hole.

Perkins agreed to make a controlled purchase from defendant Clinton

at his home.

Officer Tong testified that on May 27, 1997, he met with

Perkins, frisked him for drugs, and then fronted him $200 of police

department money for the purchase of drugs. Officer Tong and

Perkins went to defendant Clinton’s house at 2873 Freddie and

Officer Tong watched Perkins enter Clinton’s residence. Inside the

house, defendant Perkins told defendant Clinton that he wanted to

spend some money with Clinton. Clinton went to a back room and

returned with a bag of cocaine, which he cut with a razor blade.

Ten minutes after he went in, Perkins exited defendant Clinton’s

house and returned to Officer Tong’s car.

Perkins was paid $150 by the DEA for making the purchase from

defendant Clinton. Perkins volunteered his assistance and was not

under threat of prosecution for drug trafficking activities when he

participated in the May 27, 1997 purchase.

Defense counsel was permitted to impeach Perkins’ testimony

with Officer Tong’s report on the purchase. Officer Tong’s report

17
recounted that Perkins told Tong that defendant Clinton had secured

the crack cocaine from the backyard, rather than a back room.

Perkins stuck with his story that defendant Clinton procured the

crack cocaine from a back room. Defense counsel tried to resurrect

the inconsistency again, impeaching Tong’s testimony that Perkins

told him that defendant Clinton got the crack cocaine from a back

room with the report stating that Clinton retrieved the cocaine

from the backyard. Officer Tong responded that he observed the

house and that no one came outside or left the house while Perkins

was inside. Thus, notwithstanding any contrary indication in the

report, it was highly unlikely in Officer Tong’s view that anyone

could have obtained anything from the backyard. Defense counsel

was also permitted to attack Perkins’ credibility by establishing

that Perkins had functioned as a paid informant for the DEA before,

and that he had prior convictions for aggravated battery.

M. Additional Evidence Relating to the Conspiracy

The government also offered the testimony of two indicted co-

conspirators and two customers who bought drugs from defendant

Clark’s organization.

A. Co-conspirator McCullough

Co-Conspirator McCullough told the jury that his relationship

with defendant Clark began in 1988 or 1989, when defendant Clark

asked McCullough, who had a reputation for avoiding robbery in the

course of drug trafficking, to provide protection for Clark’s drug

trafficking activities.

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 Co-conspirator McCullough testified that he pleaded guilty to

the conspiracy charge alleged in count 1, but that he volunteered

to assist the government before he decided to plead guilty. With

regard to the conspiracy alleged in count 1, McCullough testified

that he knew each of the defendants and that they were all involved

in the conspiracy alleged in count 1 of the indictment. McCullough

testified that defendant Clark was the source of the crack cocaine

sold by the organization. McCullough testified that Clark’s

organization was based at the Hole, that defendant Clinton or his

family owned some of the houses there, that defendant Clark

maintained a trailer there, and that McCullough himself lived and

worked there protecting defendant Clark’s drug operation.

Co-conspirator McCullough testified that defendant Clark

provided guns, typically either a .357 magnum or a 9 millimeter,

that McCullough carried as part of his security work for the drug

trafficking organization. Although McCullough never used the gun,

he testified that he would have used it if someone had tried to rob

the organization. McCullough was compensated for his security

work with cost-free illegal drugs rather than money; he testified

that needed the job to support his $400 or $500 per day drug habit.

McCullough testified that the police had difficulty stopping

the drug trafficking operations in the Hole, even though they knew

or strongly suspected that it was occurring. This was because the

semi-rural area was difficult to observe and because the defendants

would just move the operation to another location when the police

applied pressure and then return when the police retreated. Part

19
of the plan was to have lookouts outside monitoring the area at all

times, and participants in the organization had ways to determine

when an undercover officer was in the area.

McCullough testified that when the conspiracy ended, defendant

Clark’s organization was selling about 40 grams of crack cocaine

per week. The layout and relative isolation of the Hole area made

traffic and parking serious issues that the operation had to deal

with. McCullough testified that he had observed defendant Reliford

directing traffic in and out of the Hole for drug purchases some

time after 1993. Aside from that evidence, McCullough stated that

he did not deal drugs with defendant Reliford.

McCullough identified the defendants in court and his

testimony tied their proper names to the street names used in the

conspiracy. Defendant Clark was identified as “Chickenman” or

“Chick,” the leader of the conspiracy. Defendant Clinton was

identified as “Whopper.” Defendant Washington was identified as

“Gold Brick,” a distributor in the organization.1 McCullough

identified defendant Reliford as “Cleve.” After this testimony,

the prosecutor asked that the record reflect McCullough’s

identification of the defendants. Defendant Washington’s counsel

raised, but then withdrew, an objection to the prosecutor’s

request.

Defense counsel was permitted to call McCullough’s credibility

1
Although McCullough testified that he had known Gold Brick
since childhood, he did not know his proper name. He was, however,
able to point him out, thereby identifying him as Gold Brick in
court.

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into question by exploring any promise of favorable treatment, by

establishing that he had prior drug convictions, and by eliciting

testimony that he had been in drug rehab and relapsed several

times.

B. Co-conspirator Sellers

Co-conspirator Darryl Sellers pleaded guilty to the conspiracy

alleged in count 1 prior to trial, and then agreed to assist the

government in exchange for the government’s agreement to seek a

favorable sentence in his case. Sellers testified that he was

involved in defendant Clark’s drug trafficking organization during

the period defined in the indictment. Sellers testified that

defendants Clark, Clinton, and Washington were involved in those

activities with him, and corroborated testimony that defendant

Washington used the name Gold Brick in the conspiracy.2

Sellers also provided testimony about the roles assumed by the

various defendants in the conspiracy. Sellers testified that Clark

ran the drug trafficking organization. Sellers testified that the

organization ran smoothly and that, although he was involved in the

conspiracy, he was not considered “qualified” to formally join the

operation. With respect to defendant Clinton, Sellers emphasized

that Clinton likewise played an important role in the organization.

For example, Sellers testified that he had observed defendant Clark

and defendant Clinton pooling their money for drugs. Sellers

testified that defendant Washington was a distributor like himself

2
Sellers did not identify defendant Reliford as someone who
was involved in the conspiracy to which he pleaded guilty.

21
and that he obtained the drugs from either defendant Clark or

defendant Clinton. Sellers specifically testified that he obtained

7 gram packages of crack cocaine drugs from defendant Clark on two

or three occasions in 1994, on one occasion in 1995, and on another

occasion in 1996. Sellers further testified that he obtained an

“eight-ball” from defendant Clark in 1997. Finally, Sellers

testified that he obtained a half-ounce package of crack cocaine

from defendant Clinton in 1995.

Defense counsel was permitted to call Sellers’ testimony into

question by establishing that Sellers is a long-time gang member,

and that he had a prior conviction for felony theft and prior drug

convictions. By doing so, the defense was able to dramatically

highlight both Sellers’ criminal history and the significant value

to Sellers of the government’s promise to press for a reduced

sentence in his case.

C. Customers Alice June and Demarcus June

Alice and Demarcus June testified as customers of the Clark

drug trafficking organization. Neither of the Junes was indicted

in the instant case.

Alice June testified that she had known defendant Clark since

he was a little boy, and that she bought crack cocaine from him.

Specifically, Alice June testified that she purchased 4.5 ounce

quantities from defendant Clark on seven or eight occasions during

the period defined by the conspiracy charged in count 1 of the

indictment.

On cross-examination, defense counsel was permitted to develop

22
facts bearing on Alice June’s credibility, including her prior drug

convictions, a prior conviction for shoplifting, and the fact that

she received a significantly reduced sentence in an unrelated

prosecution after she agreed to cooperate with the government. The

defense was also permitted to explore the fact that the prosecution

had promised to request some further reduction of Alice June’s

already imposed sentence pursuant to Federal Rule of Criminal

Procedure 35 if she cooperated in the instant case.

Demarcus June testified that he knew defendant Clark

throughout the period defined by count 1 of the indictment and that

he purchased crack cocaine from defendant Clark on six or seven

occasions during that time period. Demarcus June testified that he

typically purchased a half-ounce (approximately 14 grams) or a

full ounce (approximately 28 grams) at a time. Demarcus June

testified that he knew defendant Reliford, but that defendant Clark

was the only person he bought drugs from in the Hole.

On cross-examination, defense counsel was permitted to develop

facts bearing on Demarcus June’s credibility. For example, defense

counsel elicited testimony establishing that he had received a

sentence reduction in an unrelated case for cooperating with the

government, and that the government had promised to request some

further reduction of his already imposed sentence pursuant to

Federal Rule of Criminal Procedure 35 if he cooperated in the

instant case.

III. SUFFICIENCY ARGUMENTS

Having set forth the relevant evidence, we now turn to

23
consideration of the defendants’ specific arguments that the

government failed to meet its burden of proof.

A. Defendant Clark

Defendant Clark challenges the sufficiency of the evidence to

establish his criminal liability on the conspiracy count, and on

the charge in count 10 that he attempted to distribute crack

cocaine on March 10, 1995. Defendant Clark raises a general

challenge to the sufficiency of the evidence used to convict him as

well as two specific sufficiency arguments. First, Clark argues

that there is insufficient evidence to prove that he was ever in

actual or constructive possession of crack cocaine. We disagree,

both with the factual premise that there is no such evidence in the

record, and with the legal premise that the absence of such

evidence would require the reversal of his convictions. The record

is rife with strong circumstantial evidence establishing Clark’s

important leadership role in drug trafficking activities involving

sufficiently large quantities of crack cocaine. More importantly,

Clark was charged and convicted on counts alleging conspiracy to

distribute (count 1) and actual distribution (count 10) of crack

cocaine. Clark was not charged with and does not stand convicted

on the alternative statutory theory that he possessed crack cocaine

with intent to distribute the drug. Possession is not an essential

element of a charge based upon actual distribution of the drug,

rather than possession with intent to distribute. See Sotelo, 97

F.3d at 789 (articulating the essential elements of a distribution

offense).

24
 Defendant Clark next argues that the government’s evidence

that he was involved in the actual distribution of cocaine must be

discounted because it came exclusively from the testimony of

convicted felons who were promised the possibility of favorable

sentences in exchange for their cooperation at Clark’s trial. Once

again, we disagree with both the factual premise and the legal

conclusion offered in support of this argument. Clark’s conviction

on the substantive count alleging attempted distribution (count 10)

depends primarily upon the testimony of Officer Anderson, whom

defendant Clark concedes is a credible witness. Clark’s conviction

on the conspiracy count is likewise supported by the testimony of

law enforcement officers Tong, Washington, and Anderson, all of

whom defendant Clark concedes are credible witnesses worthy of

belief by the jury. More fundamentally, even if Clark’s conspiracy

conviction were supported solely by the testimony of the cast of

co-conspirators, paid informants, and customers who appeared in

this case, we would not find reversible error. As an initial

matter, the uncorroborated testimony of a co-conspirator, “even one

who has chosen to cooperate with the government in exchange for

non-prosecution or leniency, may be constitutionally sufficient

evidence to convict." United States v. Medina, 161 F.3d 867, 872-

73 (5th Cir. 1998) (internal quotations omitted), cert. denied, 119

S. Ct. 1344 (1999). But Clark does not even argue that such

evidence is insubstantial, but that it is unworthy of belief. This

argument is unavailing. "It is well-settled that credibility

determinations are the sole province of the jury." United States

25
v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997) (internal alterations

and quotations omitted), cert. denied, 118 S. Ct. 158 (1998). The

district court gave explicit and lengthy instructions cautioning

the jury that they should carefully consider the character of the

witnesses and the nature of their interest in the case when

deciding whether to credit particular testimony. Clark’s counsel

was permitted a great deal of latitude when cross-examining the

government’s witnesses on issues of potential bias or interest, and

we see no reason in this case to second-guess the jury’s

credibility determinations.

Having reviewed the record evidence, we are persuaded that

there is ample record evidence establishing each of the essential

elements required to support defendant Clark’s convictions for

conspiracy to distribute crack cocaine (count 1) and attempted

distribution of crack cocaine (count 10). We therefore reject

defendant Clark’s argument that his convictions must be reversed

because they are not supported by sufficient evidence, and affirm

the district court’s judgment of conviction on both counts.

B. Defendant Clinton

Defendant Clinton challenges the sufficiency of the evidence

to support his convictions on the conspiracy count, and on the

charge in count 11 that he distributed a quantity of cocaine on May

27, 1995. Clinton complains that his conviction on the conspiracy

count depends entirely upon the incredible testimony of an indicted

but pleading coconspirator, Darryl Sellers. Similarly, Clinton

complains that his conviction on count 11 depends entirely upon the

26
incredible testimony of a paid confidential informant, Aaron

Perkins. Clinton makes, not only the unavailing argument that the

evidence from these witnesses was incredible, but also the more

viable argument that it was insubstantial. See Medina, 161 F.3d at

872-73; Dixon, 132 F.3d at 199.

The problem with Clinton’s argument is that neither of

defendant Clinton’s convictions depend solely upon the

uncorroborated testimony of co-conspirator Sellers or informant

Perkins. With respect to the conspiracy count, the car driven by

defendant Clark when Officer Derrick made the traffic stop that led

to the investigation in this case belonged to Clinton. Several of

the houses on the block comprising the Hole belonged to either

Clinton or his family, suggesting that he was strongly tied to the

distinctive location used primarily for drug trafficking

activities. Officer Washington testified that Clinton approached

Officer Washington as he was leaving the Hole on October 5, 1994,

telling Officer Washington that he would be “dealing with” Clinton

from now on. Officer Anderson testified that Clinton warned

defendant Clark about police in the area of the Hole while a drug

transaction with an undercover officer was in progress on January

24, 1995. Finally, Officer Anderson testified that defendant

Clinton was present when Officer Anderson made the foiled attempt

to purchase three ounces on March 10, 1995.

Co-conspirator Sellers added to this body of evidence by

providing details about Clinton’s involvement and his role in the

conspiracy. Many of those details were corroborated by the

27
testimony of co-conspirator McCullough. Clinton is correct that

Sellers was the exclusive source for a few details relating to

Clinton’s role rather than whether he was involved in the

conspiracy. Those facts, however, were relevant primarily for

sentencing purposes and were not required to sustain the jury’s

determination of guilt.

With respect to the distribution count (count 11), paid

informant Perkins’ testimony is corroborated in many particulars by

that of Officer Tong, who frisked Perkins before the buy,

transported Perkins to the buy, observed the house during the

course of the buy, and then took possession of the crack cocaine

immediately after Perkins exited defendant Clinton’s house. The

reasonable inference that Clinton distributed cocaine on that

occasion could be drawn from Officer Tong’s testimony alone, but is

made stronger by Perkins’ testimony, which merely provides

additional details about what happened inside defendant Clinton’s

house on May 27, 1995. For the foregoing reasons, Perkins’

testimony is neither uncorroborated nor insubstantial.

Having reviewed the record evidence, we are persuaded that

there is ample record evidence establishing each of the essential

elements required to support defendant Clinton’s convictions for

conspiracy to distribute crack cocaine (count 1) and for

distributing a quantity of cocaine on May 27, 1997 (count 11). We

therefore reject defendant Clark’s argument that his convictions

must be reversed because they are not supported by sufficient

evidence, and affirm the district court’s judgment of conviction on

28
both counts.

C. Defendant Reliford

Defendant Reliford challenges the sufficiency of the evidence

to support his convictions on the conspiracy count (count 1), and

on three counts alleging that he distributed crack cocaine on

September 22, 1994 (count 2), September 28 (count 3), and November

1, 1994 (count 6). Defendant Reliford makes separate arguments

concerning the conspiracy count and the three substantive

distribution counts. With respect to the distribution counts,

Reliford argues that the government failed to prove identity; that

is, that he is the person who committed the acts alleged in the

indictment. With respect to the conspiracy count, Reliford

maintains that the evidence was insufficient to establish his

knowing and voluntary participation in the charged conspiracy.

Each of these arguments will be considered in turn.

1. Distribution Counts

Defendant Reliford argues that his convictions for

distribution of crack cocaine on September 22, 1994 (count 2),

September 28 (count 3), and November 1, 1994 (count 6), must be

reversed because the government failed to prove that he was the

person who sold Officer Washington crack cocaine on September 22,

1994, facilitated the September 27, 1994 undercover purchase by

introducing Officer Washington to defendant Washington, and

participated in the November 1, 1994 purchase by procuring drugs

from a location near the wood line. Defendant Reliford notes that

29
the prosecutor never led Officer Washington through a definitive or

distinct in-court identification of Reliford as the man from whom

Officer Washington purchased drugs on September 22, 1994.

Defendant Reliford then maintains that Officer Washington’s

pretrial identification of defendant Reliford from a photo array

may not be used to support his conviction because the facts and

circumstances surrounding the identification rendered the

identification inherently unreliable.

We disagree. Officer Washington was twice asked at trial

whether he knew defendant Cleveland Reliford. Officer Washington

testified that he did know defendant Reliford and that defendant

Reliford was the person who sold him drugs on September 22, 1994,

who facilitated the September 28, 1994 purchase of crack cocaine by

introducing Officer Washington to defendant Washington, and who

procured cocaine from the wood line for the November 1, 1994

purchase charged in count 6. Thus, we disagree with defendant

Reliford’s contention that Officer Washington never identified

defendant Reliford at trial.

Officer Washington’s testimony revealed that his

identification of defendant Reliford was based upon the name given

by Reliford to Officer Washington during the September 22, 1994

drug purchase, the confirmation of Reliford’s identity received

from Officer Washington’s confidential informant, and a pretrial

identification of Reliford by Officer Washington from a six photo

array prepared shortly after the September 22, 1994 purchase by

another officer.

30
 Defendant Reliford attacks only the reliability of and the

jury’s reliance upon the pretrial identification. Defendant

Reliford does not argue that the pretrial identification was

impermissibly suggestive. Rather, defendant Reliford’s brief

argument on this point, which is completely devoid of relevant

citation, suggests that certain inconsistencies in the testimony

concerning the photo array either render the pretrial

identification unreliable or otherwise make the jury’s reliance

upon that evidence unreasonable. Specifically, defendant Reliford

notes that Officer Washington and Officer Tong gave inconsistent

testimony concerning how the defendant identified himself during

the September 22, 1994 undercover purchase. Officer Washington

testified that defendant Reliford identified himself as Cleveland

Reliford, while Officer Tong testified that defendant Reliford

identified himself as Big Cleve. Defendant Reliford notes that,

notwithstanding this testimony that the defendant identified

himself during the September 22, 1994 undercover purchase, Officer

Washington left defendant Reliford’s name out of his report pending

positive identification at a subsequent pretrial photo array.

Finally, defendant Reliford notes that the police reports and the

officer’s testimony at trial generated some confusion about exactly

when the photo array was shown to Officer Washington.

These inconsistencies are either immaterial or were adequately

explained by the testimony at trial. Although the police reports

mention the photo array on several different dates, those

inconsistencies were adequately explained by the testifying

31
witnesses. Officer Washington explained that the subject of a

photo array was raised immediately after the first sale.

Consistently, Officer Tong’s report first mentions the photo array

on September 23, 1994, the day after the first drug purchase.

Although both Officer Tong and Officer Washington demonstrated some

initial confusion about whether the photo array was shown to

Officer Washington on September 27, 1994 or September 29, 1994,

Officer Washington later confirmed that he conclusively identified

defendant Reliford on September 29, 1994, the date indicated next

to his signature on the actual array, which was admitted as an

exhibit at trial. Further testimony clarified that the array might

have been requested and prepared on separate dates, and then shown

to Officer Washington on a third date. Officer Washington also

explained that, notwithstanding defendant Reliford’s use of either

his proper name or a nickname during the September 22, 1994

purchase, he was advised to omit the name of the suspect from his

September 22, 1994 report until the array could be conducted.

Finally, without regard to how the defendant identified himself

during the September 22, 1994 drug purchase, he was identified by

both his proper name, Cleveland Reliford, and his nickname, Cleve

or Big Cleve, at trial. Aside from these minor inconsistencies in

the trial testimony, defendant Reliford does not identify any facts

that tend to undermine the credibility of Officer Washington’s

testimony or the accuracy or validity of his pretrial

identification of defendant Reliford.

We note that, while framed in terms of reliability, defendant

32
Reliford’s specific arguments actually relate to the credibility of

Officer Washington’s testimony rather than the reliability of his

identification. However, even if we were persuaded that the

inconsistencies identified by Reliford have any import with respect

to the reliability of Officer Washington’s identification, we would

still find no error. Whether there has been any infringement upon

a criminal defendant’s evidentiary interest in reliable

identification is measured by a totality of the relevant

circumstances. See Manson v. Brathwaite, 97 S. Ct. 2243, 2252

(1977); United States v. Rogers, 126 F.3d 655, 659 (5th Cir. 1997);

United States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir. 1993). A

pretrial identification need not be excluded from the jury’s

consideration unless there is a “very substantial likelihood of

irreparable misidentification.” Manson, 97 S. Ct. at 2254; see

also Rogers, 126 F.3d at 658; Sanchez, 988 F.2d at 1389. “Short of

that point, such evidence is for the jury to weigh” because

“[j]uries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has some

questionable feature.” Id.

Defendant Reliford has not presented any facts tending to

undermine the accuracy of Officer Washington’s identification. The

factual inconsistencies he does offer were properly resolved by the

jury. Moreover, the totality of the evidence at trial adequately

supports the jury’s determination that Reliford is the person who

committed the charged offenses. We therefore reject defendant

Reliford’s challenge to the sufficiency of the evidence to support

33
his convictions for distribution of crack cocaine on September 22,

1994 (count 2), September 28, 1994 (count 3), and November 1, 1994

(count 6).

2. Conspiracy Count

Defendant Reliford argues that his conspiracy conviction must

be reversed because the government presented insufficient evidence

to establish that he knowingly and voluntarily participated in the

charged conspiracy. Reliford complains that the government

evidence establishes nothing more than that he sold drugs at the

same location used by the conspirators on September 22, 1994, that

he facilitated a second sale on September 28, 1994, and that he

participated in a third sale on November 1, 1994. Reliford

maintains that this evidence is insufficient to establish his

knowing participation in this conspiracy. Alternatively, Reliford

maintains that his conviction cannot be sustained because the

evidence is insufficient to establish his continued involvement

after the November 1, 1994 purchase.

We disagree. Reliford’s active participation in three

transactions plus the additional evidence demonstrating his

involvement in the conspiracy is sufficient in this case to support

a reasonable inference of knowing and voluntary participation.

Moreover, the jury could reasonably infer that defendant Reliford

continued to be involved in the conspiracy after November 1, 1994,

absent evidence that Reliford acted in manner that was inconsistent

with the object of the conspiracy and did so in a manner that was

reasonably calculated to reach the conspirators. See, e.g., United

34
States v. Mann, 161 F.3d 840, 859-60 (5th Cir. 1998); see also

United States v. Puig-Infante, 19 F.3d 929, 945 (5th Cir. 1994)

(“Ordinarily, a defendant is presumed to continue involvement in a

conspiracy unless that defendant makes a substantial affirmative

showing of withdrawal, abandonment, or defeat of the conspiratorial

purpose.”) (internal quotations omitted).

We conclude that the evidence was sufficient to support

defendant Reliford’s conspiracy conviction and, therefore, affirm

the district court’s judgment of conviction as to that count.

D. Defendant Washington

Defendant Washington challenges the sufficiency of the

evidence to support his convictions on the conspiracy count, six

counts of distributing five grams or more of crack cocaine on

September 28, 1994 (count 3), October 5, 1994 (count 4), October

21, 1994 (count 5), November 1, 1994 (count 6), January 24, 1995

(count 7), and January 31, 1995 (count 9), one count of

distributing 50 grams or more of crack cocaine on January 27, 1995

(count 8), and one count of attempting to distribute a quantity of

crack cocaine on March 10, 1995 (count 10). Defendant Washington

raises the general point that the district court erred by refusing

to grant his motion for judgment of acquittal and the specific

argument that the government failed to prove identity, i.e. that he

is the person who committed the acts alleged in the indictment.

Defendant Washington’s argument in this regard is closely tied to

the way in which law enforcement officials positively identified

him as the perpetrator prior to trial.

35
 The testimony at trial established that neither Officer

Washington nor Officer Anderson knew defendant Washington’s proper

name during much of the undercover investigation. Instead, both

officers knew the person they later identified as defendant

Washington only by his nickname, Gold Brick. At some point, a

confidential informant identified Gold Brick as the defendant,

Johnny Washington. Upon receiving this information, Officer Tong

obtained a photo of defendant Washington from the Shreveport Police

department and placed the photo in the case file.

At trial, the government did not ask either Officer Washington

or Officer Anderson to formally identify defendant Washington as

the person from whom they purchased drugs in the course of the

undercover investigation. The officers’ testimony nonetheless

eliminated any doubt about their certainty that defendant

Washington was the same person as the Gold Brick from whom they

purchased drugs during the undercover investigation. Officer

Washington testified that Gold Brick was defendant Washington’s

street name or alias. Moreover, Officer Washington testified that

he did subsequently identify defendant Washington as Gold Brick,

although that identification was not made by way of a formal pre-

trial photographic line-up or in written reports. Officer Anderson

testified that he was “positive” of his identification of defendant

Washington as Gold Brick, and that defendant Washington was the

same man that he purchased drugs from on several occasions.

Officer Anderson also testified that he had previously identified

defendant Washington in a pretrial photo line-up. Although neither

36
Officer Washington’s nor Officer Anderson’s testimony on the

subject is very clear, Officer Tong’s testimony suggests that their

pretrial identification of defendant Washington was based upon

information received from a confidential informant and their

identification of defendant Washington from the photo placed in the

case file by Officer Tong.

Defendant Washington argues both that the pretrial

identification procedure was impermissibly suggestive and that the

subsequent identification was unreliable. Defendant Washington

contends that his due process rights have been violated because the

facts and circumstances in this case create a substantial risk of

irreparable misidentification. See United States v. Rogers, 126

F.3d 655, 658 (5th Cir. 1997) (“The Due Process Clause protects

accused individuals from the use against them of evidence derived

from unreliable identifications that resulted from impermissibly

suggestive procedures.”). We scrutinize such claims using a two-

part test. First, we ask whether the identification procedure was

impermissibly suggestive. Id. Second, we ask whether, in light of

the totality of the relevant circumstances, the procedure posed a

"very substantial likelihood of irreparable misidentification."

Id. If the answer to both questions is yes, then the

identification is not admissible and should have been excluded from

the jury’s consideration. See Rogers, 126 F.3d at 658.

The lynchpin of the balancing inquiry is reliability, with an

attendant focus upon fairness. Manson, 97 S. Ct. at 2253; Rogers,

126 F.3d at 658; Sanchez, 988 F.2d at 1384. Factors that may be

37
considered when making this determination include: (1) the

opportunity of the witness to observe the criminal at the time of

the crime; 2) the witness’ degree of attention; 3) the accuracy of

the witness’ prior description; 4) the level of certainty

demonstrated at the identification; and 5) the time between the

crime and the identification. See Manson, 97 S. Ct. at 2253;

Rogers, 126 F.3d at 658; Sanchez, 988 F.2d at 1389. These factors

are to be weighed against the “corrupting effect of the suggestive

identification itself.” Manson, 97 S. Ct. at 2253; Rogers, 126

F.3d at 658.

Defendant Washington argues, and this Court has recognized

that an identification premised upon the presentation of a single

photograph may be highly suggestive. See Rogers, 126 F.3d at 658;

see also Manson, 97 S. Ct. at 2254. Thus, at least in some

contexts, the potential for a corrupting influence when a pretrial

investigation is premised upon a single photograph may be high. We

note, however, that this is not a case in which a vulnerable victim

outside of law enforcement was presented with a single photograph

by law enforcement authorities who, by presenting only one

photograph, suggested that the pictured individual was the

perpetrator. To the contrary, these trained law enforcement

officers dealt with defendant Washington face-to-face. See Manson,

97 S. Ct. at 2253; Sanchez, 988 F.2d at 1389-90. In that sense,

the photograph was actually used to confirm defendant Washington’s

proper name rather than his identity as a perpetrator. We need

not, however, decide whether the procedure utilized in this case

38
was impermissibly suggestive because assuming arguendo that it was,

there can be no reversible error unless the totality of the

relevant circumstances create a “very substantial likelihood of

irreparable misidentification.” Manson, 97 S. Ct. at 2254; see

also Rogers, 126 F.3d at 658; Sanchez, 988 F.2d at 1389.

There is no such likelihood of misidentification in this case.

Officer Washington’s and Officer Anderson’s identification of

defendant Washington from the photograph in the case file occurred

near the end or at the end of the undercover investigation and

after defendant Washington was involved in multiple undercover

purchases. Both officers had ample opportunities to observe

defendant Washington, and there is no indication that their view of

him during those transactions was in any way obstructed or

compromised. See Manson, 97 S. Ct. at 2253; Sanchez, 988 F.2d at

1389-90. As police officers engaged in an undercover

investigation, both officers would have anticipated being called

upon to identify the persons involved in the drug trafficking

activities. See Manson, 97 S. Ct. at 2254; Sanchez, 988 F.2d at

1390. Thus, both officers would have been exercising a high degree

of attention. See Sanchez, 988 F.2d at 1390. While there is no

evidence that either officer reported a verbal description of

defendant Washington, a.k.a. Gold Brick, to Officer Tong or other

case agents, both officers’ trial testimony tended to negate any

doubt about defendant Washington’s identity as Gold Brick. See

Manson, 97 S. Ct. at 2253. Finally, the officers’ identification

of defendant Washington occurred shortly after police were able to

39
discern his true identity. For Officer Washington, this was after

the last in a series of purchases involving defendant Washington;

for Officer Anderson, this was shortly after his first purchase

involving defendant Washington and while his investigation was

continuing.

Defendant Washington attempts to establish the inherently

unreliable nature of the officers’ pretrial identifications by

pointing to a police report and an evidence bag prepared after one

of the undercover purchases. At that time Gold Brick’s proper name

was unknown, but police had reason to believe that Gold Brick’s

real name might be “Sidney Young.” That possibility was recorded

in the police report and on the evidence bag. Defendant Washington

contends that this evidence suggests that the officers’

identifications might be in error. We disagree. The police report

and evidence bag merely reflected the task force’s best

understanding of the identity of Gold Brick at that time. There is

absolutely nothing in the record to suggest that any such Sidney

Young is in fact a real person or that defendant Washington was

incorrectly identified by the undercover officers. Moreover,

defense counsel was given ample opportunity to explore the import

of the police report and evidence bag at trial, and this is

precisely the type of conflict that the jury is competent to

resolve. See Manson, 97 S. Ct at 2254; Sanchez, 988 F.2d at 1391

Identity can be proven through inference and circumstantial

evidence. See United States v. Guerrero, 169 F.3d 933, 941 (5th

Cir. 1999). When supported by the officers’ unequivocal testimony

40
at trial, and the corroborating testimony of other witnesses, we

are persuaded that there is not in this case a very substantial

likelihood that both officers’ pretrial identification of defendant

Washington was in error. For that reason, there can be no error

predicated upon defendant Washington’s contention that the

identifications were unreliable, and we reject defendant

Washington’s argument that his convictions must be reversed because

the government failed to establish his identity.

We are persuaded, however, that the government’s evidence was

insufficient to support defendant Washington’s conviction on the

charge in count 10 that he attempted to distribute crack cocaine on

March 10, 1995. The record evidence relating to that charge

establishes nothing more than that Officer Anderson saw defendant

Washington at the Hole on that date. There is nothing tying

defendant Washington to the attempted transaction made the basis of

that charge. Accordingly, defendant Washington’s judgment of

conviction and sentence on that count must be vacated, and the

cause remanded for entry of a modified judgment.

III. EVIDENTIARY POINTS

Defendant Washington argues that his conviction must be

reversed because the district court denied his motion for mistrial

after Officer Tong inadvertently referred to a photograph taken in

the course of defendant Washington’s prior arrest. The

objectionable reference occurred in the following context. On

direct examination, the prosecutor established that Officer Tong

41
had identified all of the defendants as being involved in the

charged offenses. On cross-examination, defendant Washington’s

counsel questioned Officer Tong at length about exactly how

defendant Washington was identified as being the person using the

street name of Gold Brick. On re-direct examination, the

prosecutor sought to clarify any misunderstanding about the

identification, by asking Officer Tong to clarify how Officer

Washington confirmed defendant Washington’s identity. Officer Tong

responded as follows:

Mr. Washington was always identified through the
undercover purchases as Gold Brick. It took
several days for us, or took us several months for
us to positively identify him by name, which was
Johnny Washington. Upon identifying him as Johnny
Washington, I obtained a Shreveport Police
photograph of a prior arrest and placed it in . . .

At that point in the testimony, defendant Washington’s counsel made

an objection, which was sustained by the district court. The

district court further instructed the jury at that time that they

were to disregard the last sentence of Officer Tong’s testimony,

and specifically, where or how the photograph was obtained by the

police. Washington’s counsel then noted that a further objection

and request on defendant Washington’s behalf needed to be raised,

but could be handled outside the presence of the jury. Later,

outside the presence of the jury, defendant Washington moved for a

mistrial. The district court denied the motion, noting that there

was insufficient prejudice rising from the brief remark to justify

a mistrial.

We review the district court’s denial of a motion for mistrial

42
for an abuse of discretion. See United States v. Millsaps, 157

F.3d 989, 993 (5th Cir. 1998). “If the motion for mistrial

involves the presentation of prejudicial testimony before a jury,

a new trial is required only if there is a significant possibility

that the prejudicial evidence had a substantial impact upon the

jury verdict, viewed in light of the entire record.” United States

v. Paul, 142 F.3d 836, 844 (5th Cir.), cert. denied, 119 S. Ct. 271

(1998). A prejudicial remark may be rendered harmless by curative

instructions to the jury. See United States v. Nguyen, 28 F.3d

477, 483 (5th Cir. 1994). Moreover, this Court gives great weight

to the district court’s assessment of the prejudicial effect of an

objectionable remark. Id.

Defendant Washington acknowledges that a curative instruction

is often sufficient to avoid undue prejudice, but argues that the

curative instruction was not sufficient in this case because the

absence of competent evidence identifying defendant Washington as

the person who committed the acts alleged in the indictment created

a “significant possibility” that the jury would be unable to

disregard the reference to Washington’s prior arrest. The

Government counters that Officer Tong’s reference was fleeting and

unrelated to the substantive testimony being offered. See United

States v. Sotelo, 97 F.3d 782, 798 (5th Cir. 1996) (characterizing

such comments as "stray" and finding any error harmless). The

government also relies upon the curative instruction and the

overwhelming nature of the evidence against defendant Washington

for the proposition that the trial court did not abuse its

43
discretion.

Having concluded an exhaustive review of the record, we affirm

the district court’s denial of defendant Washington’s motion for

mistrial. Officer Tong’s stray reference to defendant Washington’s

prior arrest was exceedingly brief and was completely unrelated to

the substance of his identification testimony. The government did

not impermissibly refer to or explicitly or implicitly make any

objectionable use of the comment later in the trial. In addition,

the district court’s straightforward curative instruction was

adequate to address any potential prejudice arising from the

fleeting remark. As the district court explicitly recognized in

its comments to counsel outside the presence of the jury, any

further comment would only have merely exaggerated the significance

of what was otherwise a relatively innocuous and brief remark.

Finally, as developed supra, we do not agree with defendant

Washington’s premise that the record is somehow deficient on the

issue of his identity. The government produced ample evidence of

defendant Washington’s identity.

Defendant Washington also contends that his conviction must be

reversed because the district court permitted Henry McCullough, a

pleading co-conspirator, to testify that his guilty plea to count

1 of the indictment included his admission that he “sold drugs

with” defendant Washington and other defendants. Defendant

Washington objected to this testimony as being inadmissible because

it was not tied to the time frame of the conspiracy or the offenses

alleged in this case, and as being beyond the permissible scope of

44
redirect. Defendant Washington presses those same arguments on

appeal.

We review the district court’s decision to admit evidence for

abuse of discretion. See United States v. Townsend, 31 F.3d 262,

268 (5th Cir. 1994). Even if an abuse of discretion is found, the

conviction must stand unless the court finds the error to be

harmful. See id. Applying those standards, we find no reversible

error on the basis of McCullough’s testimony that he sold drugs

with defendant Washington.

Defense counsel was given significant latitude to explore the

terms of McCullough’s plea bargain on cross-examination. The

prosecutor responded on redirect by likewise raising the terms of

the plea bargain. In the context of those questions, the

prosecutor asked McCullough whether his guilty plea to the drug

conspiracy charged in count 1 constituted an admission that he sold

drugs with various defendants, including defendant Washington.

McCullough’s response was therefore tied to the time frame of and

related to the alleged conspiracy, and we decline to reverse

Washington’s convictions on this ground.

V. SENTENCING ISSUES

Defendants Reliford and Clinton challenge certain aspects of

the district court’s calculation of their guideline sentences. We

review the trial court’s application of the Sentencing Guidelines

de novo and its factual findings for clear error. See United

States v. Dixon, 132 F.3d 192, 201 (5th Cir. 1997).

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A. Defendant Reliford

Defendant Reliford maintains that the district court

erroneously calculated the quantity of drugs attributable to him.

Specifically, Reliford maintains that there is no credible evidence

that he was involved in the conspiracy past November 1, 1994.

Thus, Reliford maintains that he should have been held accountable

for only 87.27 grams, the amount attributed to transactions

occurring between September 22, 1994, and November 1, 1994, and not

for additional quantities attributable to transactions occurring

between November 1, 1994, and May 1997. We review the district

court’s factual determination of the amount fairly attributed to

defendant Reliford for clear error. See Millsaps, 157 F.3d at 995.

The district court’s fact finding that defendant Reliford

could be held accountable for transactions occurring after November

1, 1994, was based upon Officer Tong’s testimony at the sentencing

hearing and defendant Reliford’s own statements to the probation

officer that he bought and sold drugs throughout the time period

defining the conspiracy. Officer Tong testified that pleading co-

conspirator McCullough, informant Sellers, and witness Demarcus

June told him that defendant Reliford was involved throughout the

time period alleged in the indictment. Tong specifically testified

concerning government information that, during the time period

defined in the indictment, Reliford met people at the entrance to

the Hole, ascertained what they wanted to purchase, directed the

potential customers to the appropriate person and location, and

sometimes involved himself in the transactions. Reliford argues

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that Officer Tong’s testimony is inadmissible hearsay and that it

is incredible because it is inconsistent with those witnesses’

trial testimony that they never purchased drugs from defendant

Reliford.

We disagree. Defendant Reliford’s objection that Officer

Tong’s sentencing testimony was inadmissible hearsay is unavailing.

The evidence used to determine relevant conduct for sentencing

purposes need not be admissible at trial, but needs only to possess

sufficient indicia of reliability to support its accuracy. See

Medina, 161 F.3d at 876. We likewise disagree with defendant

Reliford’s premise that Officer Tong’s sentencing testimony was

patently inconsistent with the testimony of Sellers, McCullough,

and Demarcus June at trial. While it is true that those witnesses

testified that they did not personally buy drugs from defendant

Reliford, that testimony is not necessarily inconsistent with what

Officer Tong said he learned about defendant Reliford’s role from

those witnesses. Indeed, McCullough testified consistently at

trial that he knew each of the defendants and that they were all

involved in the conspiracy. McCullough also testified that he

observed defendant Reliford directing traffic at the Hole some time

after 1993. Moreover, the district court, which presided over the

trial of this matter as well as the sentencing, was competent to

assess the demeanor and credibility of the witnesses at trial and

the evidence offered at sentencing. See Sotelo, 97 F.3d at 799.

The district court’s resolution of whatever factual ambiguities may

appear in the record are deserving of our deference, provided there

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is a plausible basis in the record for the district court’s

determination. See United States v. Lage, 183 F.3d 374, 383 (5th

Cir. 1999), cert. denied, 120 S. Ct. 1179 (2000). With due

consideration of both Officer Tong’s testimony at sentencing and

the witnesses’ testimony at trial, we can not conclude that the

district court’s factual determinations that Reliford continued to

participate in the conspiracy and that the quantities involved in

the transactions occurring after November 1, 1994 were reasonably

foreseeable to him are implausible. See U.S.S.G. § 1B1.3(a)(1)(B)

(permitting consideration of “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity”); see also United States v. Brito, 136 F.3d 397,

415 (5th Cir.), cert. denied, 118 S. Ct. 1817 (1998).

Defendant Reliford also objects to the district court’s

reliance upon Reliford’s admission to the probation officer that he

purchased and sold drugs daily until his April 27, 1998 arrest.

Reliford maintains that the probation officer’s conclusory hearsay

statement, standing alone, is an inadequate factual basis for the

court’s inclusion of transactions after November 1, 1994, because

the statement does not tie the subject drug trafficking activities

to the activities of the conspiracy. We need not decide whether

Reliford’s admission, standing alone, would suffice. The record

presents an ample factual basis for the district court’s factual

determination of the quantity attributable under the guidelines to

defendant Reliford. We therefore reject defendant Reliford’s

argument that the district court’s decision to hold him responsible

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for drugs distributed after November 1, 1994, was clearly

erroneous.

B. Defendant Clinton

Defendant Clinton contends that the district court clearly

erred by enhancing his sentence under U.S.S.G. § 2D1.1(b) for

possession of a dangerous weapon. The district court’s factual

determination that Clinton possessed a dangerous weapon is reviewed

for clear error. See United States v. Navarro, 169 F.3d 228, 234

(5th Cir.), cert. denied sub nom., Edmonson v. United States, 120

S. Ct. 117 (1999); United States v. Chavez, 119 F.3d 342, 348 (5th

Cir.) (district court’s determination that a co-conspirator’s

possession of a firearm was reasonably foreseeable is reviewed for

clear error), cert. denied, 118 S. Ct. 615 (1997). Clinton’s

briefing suggests that the district court’s application of the

enhancement defined in § 2D1.1(b) was premised solely upon the fact

that police found guns at his home when he was arrested in December

1997, six months after the conspiracy alleged in count 1 ended.

We disagree. The presentence report describes several

occasions on which Clinton was in actual possession of firearms

during the course of the conspiracy. For example, in November

1994, Clinton’s car was stopped and police recovered a 9 mm Cobray

handgun with one clip and 31 rounds of live ammunition. In January

1995, Clinton was detained after police recovered a 9 mm semi-

automatic handgun with a magazine containing 11 rounds of live

ammunition when investigating a report of loud music at an

apartment complex. Finally, in November 1996, police recovered two

49
weapons owned by Clinton, a Norinco semi-automatic assault rifle,

Model SKS, and a Remington semi-automatic rifle, Model 66, after an

attempted robbery and shooting incident at Clinton’s house. While

there is no direct evidence tying Clinton’s possession of these

weapons to his drug trafficking activities, there is circumstantial

evidence supporting the inference that there was such a connection.

We therefore conclude that the facts relating to Clinton’s

individual possession of dangerous firearms on multiple occasions

during the time period defined in the indictment provides some

factual support for the district court’s application of

§ 2D1.1(b)(1).

Of equal importance, defendant Clinton may be held

responsible, not only for his own conduct, but for the foreseeable

conduct of his co-conspirators. The record establishes that

McCullough, who pleaded guilty to the conspiracy count, carried

guns provided by defendant Clark to protect the drug trafficking

activities made the object of the conspiracy. A co-conspirator’s

possession of a firearm may be used to enhance a sentence if that

possession is reasonably foreseeable to the defendant. See United

States v. Garza, 118 F.3d 278, 286 (5th Cir. 1997); see also United

States v. Gaytan, 74 F.3d 545, 559 (5th Cir. 1996) (“A court may

ordinarily infer that a defendant should have foreseen a

codefendant’s possession of a dangerous weapon, such as a firearm,

if the government demonstrates that another participant knowingly

possessed a weapon while he and the defendant committed the

offense.”). Given the evidence presented at trial, and the

50
foregoing factual circumstances, we have no trouble concluding that

McCullough’s possession of a dangerous weapon as part of his

assigned duty of protecting the conspiracy was reasonably

foreseeable to defendant Clinton. We, therefore, affirm the

district court’s reliance upon § 2D1.1(b) when determining

defendant Clinton’s sentence.

Defendant Clinton also maintains that the district court

clearly erred by enhancing his sentence under U.S.S.G. § 3B1.1

based upon the factual determination that he was a leader, manager,

or supervisor of the conspiracy. As to this enhancement, Clinton

contends that the district court failed to make the findings

required by Federal Rule of Criminal Procedure 32(c) to support

application of this enhancement. Clinton also maintains that there

is an insufficient factual basis for the district court’s factual

determination that he played a leadership role in the conspiracy.

The district court’s implementation of Federal Rule of Criminal

Procedure 32(c) is reviewed de novo. See United States v. Myers,

150 F.3d 459, 461 (5th Cir. 1998). The district court’s

determination that defendant Clinton played a leadership role is a

factual determination, which we review for clear error. See

Navarro, 169 F.3d at 234.

The district court relied upon the relevant sentencing

documents, overruling Clinton’s objection to the enhancement for a

leadership role “for the reasons stated” therein. The district

court’s express adoption of those reasons supporting the

enhancement that were given in the sentencing documents was in this

51
case sufficient to satisfy its obligations under Federal Rule of

Criminal Procedure 32(c). See United States v. Duncan, 191 F.3d

569, 575 (5th Cir. 1999) (“We have nevertheless rejected the

proposition that a court must make a catechismic regurgitation of

each fact determined; instead, we have allowed the district court

to make implicit findings by adopting the PSR.”). While the

relevant paragraph in the presentence report merely referred to

record evidence establishing defendant Clinton’s role in the

conspiracy, the government’s response to Clinton’s objections

actually set forth the record evidence supporting the probation

officer’s conclusion that the enhancement was appropriate.

Specifically, informant Sellers testified that defendant Clark was

a leader in the conspiracy and that defendant Clinton “played the

same role” as defendant Clark. The record reflects that informant

Sellers further testified that defendants Reliford and Washington

played the lesser role of distributor, rather than leader or

manager of the conspiracy. The government maintains that defendant

Clinton also demonstrated control over the conspiracy by

approaching Officer Washington after an undercover buy and telling

Officer Washington that the officer would be “dealing with” Clinton

from now on. While there is evidence in the record that might

implicitly support an inference of a lesser role for defendant

Clinton, the record reflects an adequate evidentiary basis for the

district court’s factual determination that defendant Clinton

played a leadership role. We therefore conclude that the district

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court’s fact finding that defendant Clinton played a leadership

role is not clearly erroneous.

CONCLUSION

For the foregoing reasons, the criminal convictions and

sentences of defendants Clark, Clinton and Reliford are AFFIRMED.

The criminal convictions and sentences of defendant Washington as

to the conspiracy count (count 1), and as to the counts alleging

distribution of crack cocaine on September 28, 1994 (count 3),

October 5, 1994 (count 4), October 21, 1994 (count 5), November 1,

1994 (count 6), January 24, 1995 (count 7), January 27, 1995 (count

8), and January 31, 1995 (count 9), are AFFIRMED. The criminal

conviction and sentence of defendant Washington as to the count

alleging attempted distribution of crack cocaine on March 10, 1995

(count 10), is REVERSED, and the cause is REMANDED for entry of a

modified judgment consistent with this opinion.

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