Opinion

United States v. Boone

Court: Court of Appeals for the Third Circuit
Filed: Jan 29, 2002
Cited by: 0 cases
Authority: More cited than 40.1%

district court did not commit plain error by denying acceptance reduction where appellant's pre-trial statement to investigators stopped short of a full confession

How later courts described this case

district court did not commit plain error by denying acceptance reduction where appellant's pre-trial statement to investigators stopped short of a full confession
no plain error for improper question on cross-examination of defense witness about whether defendant was involved in drug-dealing, where cooperating co-conspirators had previously testified extensively that defendant was the leader of a drug- trafficking organization
not clear error for district court to estimate unknown quantities of drugs involved in certain transactions by reference to known quantities involved in other, similar transactions
evidence was sufficient even though testimony of a government witness was to some extent self-contradictory

Written by the judges who cited it.

The opinion

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

1-29-2002

USA v. Boone

Precedential or Non-Precedential:

Docket 99-5439

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Filed January 29, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 99-5439/5695/5894

UNITED STATES OF AMERICA

LARRY BOONE,

Appellant No.: 99-5439

UNITED STATES OF AMERICA

THOMAS WESTON, aka Rasul

Thomas Weston,

Appellant No.: 99-5695

UNITED STATES OF AMERICA

Appellant No.: 99-5894

THOMAS WESTON, aka Rasul

On Appeal and Cross-Appeal from the Judgment of

Conviction and Sentence of the United States District

Court for the District of New Jersey

(Crim. No. 99-cr-00358)

District Judge: Hon. Garrett E. Brown, Jr.

Argued: September 15, 2000

Before: ROTH, McKEE and RENDELL, Circuit Judge s

(Opinion Filed: January 29, 2002)

DAVID E. SCHAFER, ESQ. (Argued)

Assistant Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, New Jersey 08609

Attorney for appellant Boone

in No. 99-5439.

DAVID L. RHOADS, ESQ. (Argued)

311 White Horse Avenue, Suite A

Trenton, New Jersey 08610

Attorney for Appellant

Weston in No. 99-5695 and

cross-appellee in No. 99-5894

ROBERT J. CLEARY, ESQ.

United States Attorney

NORMAN GROSS, ESQ. (Argued)

Assistant United States Attorney

United States Attorney's Office

Camden Federal Building and

United States Courthouse

P. O. Box 2098

Camden, New Jersey 08101

Attorneys for appellee in

Nos. 99-5439/5695 and

cross-appellant in No. 99-5894

OPINION OF THE COURT

McKEE, Circuit Judge.

A jury convicted Thomas Weston and Larry Boone of

conspiring to distribute and possess with intent to

distribute cocaine and cocaine base ("crack"). Both have

appealed alleging numerous trial and sentencing errors.

The government has also filed a cross-appeal challenging

Weston's sentence based upon the district court's

calculation of Weston's Base Offense Level.

For the reasons that follow, we will affirm the convictions

of both defendants on all counts of the indictment, and we

will also affirm Boone's sentence. However, for reasons set

forth below, we will vacate Weston's sentence and remand

for re-sentencing consistent with this opinion.

I. FACTS

Thomas Weston manufactured crack cocaine and enlisted

numerous persons to distribute large quantities of crack

and powder cocaine in Asbury Park, New Jersey between

1995 and 1998. The evidence at trial established that

Weston purchased 3 to 5 kilograms of cocaine powder from

a wholesale distributer in New York City. He converted

cocaine powder into crack cocaine, delivered cocaine to a

coterie of street level dealers for distribution in Asbury

Park, and personally "cooked" at least 200 grams of cocaine

powder into crack cocaine.

Weston solicited Stewart Mills, a hot dog vendor in

Asbury Park, to sell crack cocaine for him. However, Mills

was a reformed drug addict who was strongly opposed to

drug-dealing. Unbeknownst to Weston, Mills told local law

enforcement officials about Weston's drug activities and

agreed to broker controlled drug deals between Weston and

undercover agents posing as drug buyers.

Weston told Mills that crack should be sold at $900 an

ounce, and that Mills would have to sell a minimum of 4

ounces. Weston also gave Mills code words and numbers

that Mills was to use when communicating with Weston

about drug transactions. Weston eventually agreed to sell

four ounces of crack to a buyer whom Mills introduced as

a drug user named "Malik." Malik was actually Gregory

Hilton, an undercover agent of the Drug Enforcement

Agency. Mills and Weston agreed that the sale would occur

on July 11, 1997, in Howell, New Jersey, at a flea market

known as the "Collingswood Auction."

Thereafter, Mills paged Weston from a public telephone

as instructed by the DEA agents. He entered the number

"3600" which represented the price (i.e. $3,600) that Agent

Hilton was willing to pay for 4 ounces of crack as Weston

had requested. Weston called Mills back and arranged a

meeting at Weston's home in Asbury Park, and Mills and

Weston then met to finalize the arrangements.

Weston next contacted Curtis Farris (a/k/a "C-Allah")

and offered him $500 to deliver the drugs to the buyer at

the Collingswood Auction. Farris agreed and told Weston

that he would have someone else make the actual delivery.

Farris selected Larry Boone (a/k/a "God Supreme"). Boone

had sold cocaine for Farris before, and Farris knew that

Boone and Mills were friendly.

Farris offered Boone $100 and an eighth of an ounce of

cocaine to deliver the package of cocaine to Collingswood

Auction and collect the sales price. Boone agreed.

Meanwhile, Weston partially reneged on his agreement with

Mills to provide four ounces of crack cocaine, and

unilaterally substituted 111 grams (approximately four

ounces) of cocaine powder for delivery to Farris. On the

afternoon of July 11, 1997, Farris drove Boone to the

Collingswood Auction in a black Jeep. En route, Farris gave

Boone a brown paper bag. That bag contained a smaller

plastic bag containing 111 grams of powder cocaine that

Weston had supplied.

Law enforcement officials who had set up surveillance at

the Collingswood Auction saw Weston and two other people

arrive 2:45 p.m. Farris and Boone arrived about ten

minutes later. Boone approached Mills and said he was

"there to do the deal." Mills introduced Farris and Boone to

Agent Hilton, posing as "Malik." Hilton accompanied Boone

to Farris' car as directed. Once inside the car, Boone took

a clear plastic bag from his jacket. The bag contained the

distinctive white cocaine powder. Agent Hilton never saw

the brown paper bag.

Although Weston had set a price of $3,600, unbeknownst

to Farris, Boone demanded $3,700 from Agent Hilton.

Hilton briefly complained about the increase but ultimately

paid it as he did not want to compromise the investigation

by walking away from the transaction. Hilton agreed and

Boone handed him the plastic bag of cocaine which Agent

Hilton opened and examined in Boone's presence inside the

Jeep. After inspecting the cocaine in front of Boone, Hilton

produced $3,700 in cash which he counted in Boone's

presence and handed to Boone so that Boone could recount

it. After Hilton left the Jeep, Boone surreptitiously skimmed

$100 from the $3,700 payment, and drove off followed by

Weston who had driven another car to the flea market to

observe the transaction.1

About a week later, Boone came to Mills' home. Boone

announced that he "was back rolling," which meant that he

was selling cocaine again. He informed Mills that he (Boone)

had a "connection" and could get Mills all the"weight"

(large quantities of cocaine) that Mills wanted. During that

meeting, Boone gave Mills his "business card."

Several weeks later, again acting at the request of DEA,

Mills brokered another sale of four ounces of cocaine from

Weston to Agent Hilton posing as "Malik." During a

surreptitiously recorded conversation on July 22, 1997,

Mills told Weston that Malik wanted to buy four ounces of

crack for $3,600 during the following week. Weston again

gave Farris powder cocaine, rather than crack. However,

Farris used Herbert Jones to make the delivery to Hilton

because he could not find Boone. Jones made the delivery

on August 1, 1997. This time the transfer occurred in a

restaurant that Mills owned.

Mills again met Weston on October 4, 1997. The meeting

occurred inside a bar, and during the meeting Mills (who

was equipped with a hidden recorder) asked Weston why he

had delivered powder cocaine on July 11 and August 1

rather than the crack that Malik requested. Weston initially

claimed that he no longer "cooked up crack." However,

Weston then directed Mills out of the bar so they could

speak without being overheard. Using slang terms for

manufacturing crack ("cooking," "laying out," "bringing

back"), Weston told Mills that he (Weston) would convert

the four ounces of cocaine that he most recently sold to

Malik into four and one-half ounces of crack. Weston also

told Mills that he could provide Mills with additional crack

cocaine if he wanted it. Later, Weston told Mills to pick up

_________________________________________________________________

1. Surveillance officers captured the entire transaction on videotape, and

Hilton wore a hidden audio transmitter that allowed his conversation to

be recorded by the agents conducting surveillance.

some powder cocaine, and bring it to Weston's home so

that Weston could "cook it up."

II. DISTRICT COURT PROCEEDINGS

Weston, Boone and Jones were arrested by warrant and

complaint on June 3, 1998. Farris was arrested on

September 11, 1998. On October 27, 1998, a federal grand

jury issued a superseding indictment charging Weston,

Boone, Farris and Jones with conspiring to distribute, and

possessing with intent to distribute, more than 5 grams of

cocaine base (crack cocaine) and more than 200 grams of

cocaine, contrary to 21 U.S.C. S 841(a)(1), in violation of 21

U.S.C. S 846. The government also filed an enhanced

penalty information against Weston, pursuant to 21 U.S.C.

SS 841(b)(1)(B) and 851(a)(1). The requested enhancement

was based upon Weston's 1992 sentence of four years

incarceration in Maryland for possession of 39 grams of

crack cocaine with intent to distribute.

Farris entered into a plea agreement whereby he agreed

to cooperate with the government and plead guilty to the

superseding indictment. Jones also pleaded guilty. Boone

and Weston proceeded to trial where the jury convicted

them of the charged conspiracy.

Prior to sentencing, the Probation Office calculated

Weston's Adjusted and Total Offense Level at 40. 2 In light of

Weston's five criminal history points, and Criminal History

Category of III, Weston's Guidelines Range was 360 months

to life imprisonment. Following three days of sentencing

hearings, the district court reduced the Total Offense Level

from 40 to 32.3 The court refused to consider any of the

crack cocaine that Weston cooked as "relevant conduct"

_________________________________________________________________

2. The Probation Office used the 1998 Sentencing Guidelines Manual for

Weston and Boone.

3. It is not clear from the briefs or the transcript of the proceedings

why

the district court reduced the Total Offense Level to 32. The only

relevance that it may have for our purposes is the Apprendi claim that

we discuss below. However, as we discuss below, inasmuch as Weston

is exposed to a life sentence because of a prior drug felony conviction,

Apprendi does not apply.

under the Guidelines. This reduced the Guideline Range

calculated by the pre-sentence report by more than half.

The district court also reduced Weston's Criminal History

Category to II, resulting in a Guidelines Range of 135 to

168 months. The district court then imposed a sentence of

168 months and a term of supervised release of 8 years.

Because Boone had been convicted of two previous drug-

trafficking felonies in New Jersey state courts, as well as

aggravated assault with a deadly weapon, the district court

found that Boone was a "career offender" under the

Sentencing Guidelines. The court assigned Boone a Base

Offense Level of 32, and a Criminal History Category of VI.

The court declined Boone's request for a three level

downward adjustment for "acceptance of responsibility"

pursuant to U.S.S.G. S 3E1.1, but the district court agreed

that the resulting Guidelines Range of 210 to 262 months

was too high. Therefore, the court granted Boone a three

level downward departure, and imposed a custodial

sentence of 151 months -- the bottom of the resulting

sentencing range -- followed by a four-year term of

supervised release.

Weston and Boone have filed appeals, at Nos. 99-5695

and 99-5439 respectively. In Weston's case, the government

has filed a cross-appeal (No. 99-5894), based upon the

district court's failure to attribute any crack cocaine to

Weston in calculating his applicable Offense Level. We will

separately discuss each defendant's appeal and the

government's cross-appeal.

III. WESTON'S APPEAL

Weston's counsel has raised three claims of trial error. In

addition, we have permitted Weston to file a pro se brief, in

which he has raised three claims of sentencing error. Each

assignment of error is discussed separately.

1. The District Court Erred by Allowing Testimony

Regarding Threats Against a Government Witness.

In his counseled brief, Weston argues that the district

court improperly allowed the government to cross-examine

two defense witnesses regarding Weston's efforts to coerce

Farris into providing false exculpatory testimony for

Weston.

After Weston was indicted, he tried to get Farris to sign

an affidavit in which Farris was to swear that he did not

know Weston. When Farris returned to prison following his

guilty plea, he found a letter in his cell.4 The letter

threatened harm to Farris and his family if Farris testified

against Weston, and it instructed Farris to recopy a portion

of the letter and sign it in his own handwriting. The portion

of the letter that was to be recopied stated that Weston had

not committed the crimes he was charged with. Farris

believed that the letter came from Weston. Farris did copy

a portion of the letter as requested, but he added a

sentence in which he asked the reader to notify law

enforcement if Farris was the victim of foul play. Farris

then threw away the original letter.

Farris later spoke to Robert Perry, an inmate who worked

in the prison library and was helping Weston prepare for

trial. Perry told Farris that he should hope for a long prison

sentence, because otherwise "somebody is going to kill

you." Farris responded by telling Perry that he would

withdraw his guilty plea and refuse to testify against

Weston. Farris hoped that Perry would relay that message

to Weston.

Shortly thereafter, Farris was summoned to the prison

library where he encountered Weston, Boone and Perry.

Weston had Farris' letter and directed Farris to rewrite the

letter omitting the reference to foul play. About one week

later, Farris was again summoned to the prison library

where Boone demanded that Farris write a similar letter

_________________________________________________________________

4. According to the government, after Farris received the letter he asked

another inmate named Gavin if he had written the letter. Gavin denied

having written the letter but warned Farris that he had better not

cooperate with the government because Farris' life and Farris' family's

lives will be in danger. Government's Br. at 15 n.5. Presumably, Gavin

is the same person Weston calls Garrin. According to Weston, Garrin is

the only person who Farris actually identified as threatening him, but

who the government never directly associated with Weston. Weston's

Counseled Br. at 7.

exonerating him (Boone). Farris was transferred to another

prison after telling law enforcement authorities about the

threats. According to the government, Farris was terrified

by these threats, and did not want to testify.

At trial, Weston denied ever threatening Farris, or ever

seeing the letter that purported to exonerate Weston.

Weston also testified that when he saw Farris in prison,

Farris was surprised that Weston had been charged.

According to Weston, Farris had suggested that Jones had

implicated Weston, and Farris volunteered to exonerate

Weston.

To further contradict Farris' testimony about Weston's

intimidation, Weston presented several inmates who had

been incarcerated with Weston and/or Farris. Johnny

Davenport testified on direct examination that at the time

of trial he had been an inmate in the same prison as

Weston. He had known Weston for 18 years and Farris for

25 years. Davenport claimed that Farris admitted to him

that the government wanted Farris to "lie on[Weston]."

Davenport further testified that Farris told him that Weston

was not involved in the drug conspiracy.

On cross-examination, Davenport testified, without

objection, that he was six feet tall, and weighed about 225

pounds. When the prosecutor asked Davenport whether he

made use of this time in jail by "keeping in good shape,"

Weston's counsel objected to "personal observations of the

prosecutor." The objection was overruled. The prosecutor

then inquired, without objection, whether Davenport lifted

weights in jail. Davenport claimed that he did not. Then,

again without objection, the prosecutor elicited testimony

that Davenport had been convicted of drug-trafficking

offenses and assault.

Weston also called Nard Henderson as a defense witness.

Henderson testified on direct examination that he spoke to

Farris while the two were in a holding cell at the Federal

Courthouse in Trenton, New Jersey. According to

Henderson, Farris told him Weston "had nothing to do with

it." Henderson also claimed that Farris "was going to write

a letter, clearing [Weston]." On cross-examination,

Henderson testified without objection that he was six feet,

two and one-half inches tall, weighed 280 pounds, that he

had an extensive criminal record that included drug-

trafficking and resisting arrest, and that he was a"career

offender."

Weston argues that the cross-examination of these

witnesses was an improper attempt to "convey an image in

the minds of the jurors that Farris was continually living

under the threat of violent physical harm rendered by

Weston's prison henchmen." Weston's Counseled Br. at 6-7.

In Weston's view, "the harm visited upon [him], despite the

incriminat[ing] evidence adduced below, mandates reversal

by the Honorable Court." Id. at 7.

At the outset, we note that Weston's only objection to this

line of cross-examination was that it exceeded the scope of

direct, and that the questions were based upon improper

observations by the prosecutor. Consequently, our scope of

review as to these issues is whether the district court

committed plain error in allowing the testimony. United

States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000). "[W]e

may reverse only if we find error . . . so serious as to

undermine the fundamental fairness of the trial and

contribute to a miscarriage of justice." United States v.

Turcks, 41 F.3d 893, 897 (3d Cir. 1994)(citation omitted).

A plain error is clear or obvious. In most cases, an

error will be deemed to have affected substantial rights

where it is prejudicial. Prejudicial error, affecting

substantial rights, must have affected the outcome of

the District Court proceedings. The inquiry concerning

prejudice on plain error review is similar to our inquiry

into harmless error with the important difference that

the defendant, rather than the government, bears the

burden of persuasion in a plain error analysis.

Id. at 898 (citation and internal quotations omitted). Here

Weston never even attempts to show how the disputed

testimony constitutes plain error. He merely claims that he

was harmed by the "improper" cross-examination. We do

not believe this testimony amounts to plain error, and he

has not met his burden of showing that it was plain error.5

_________________________________________________________________

5. We do not think the court erred in allowing this inquiry. However,

even if we assume that the district court did err, the error clearly did

not

affect the outcome of the trial because Farris, Perry, and Gavin (or

"Garrin") also testified about Weston's threats.

2. The District Court Erred by Allowing

the Government to Cross-Examine Witnesses About

Weston's Prior Drug-Trafficking Activities.

Weston's counsel also argues that the district court

improperly allowed the government to cross-examine two

witnesses about Weston's prior, uncharged drug-trafficking.

Weston called Rayfield James as a character witness, and

asked him about Weston's reputation in the community for

truthfulness and honesty. James replied that Weston is

"straightforward," and "a man of his word." On cross-

examination, James testified, without objection, that "with

me, . . . [Weston had] a reputation for being law-abiding,"

and truthful. James also testified on cross-examination

that he was unaware that Weston had previously been

convicted of dealing crack cocaine, but that, even if he had

been aware, it would not have changed his opinion of

Weston's character.

However, Weston objected when the government asked

James if he was aware that the nightclub Weston owned in

Asbury Park had been the subject of a search warrant

executed by narcotics agents. The objection was overruled

and the district court immediately instructed the jury that

the question was permissible "not for the truth of any such

assertion but rather as it may affect the opinion of the

witness." James then testified that he was not aware of any

search warrant and that even if he had been, it would not

have affected his opinion of Weston.

Weston's counsel argues that allowing questions about

Weston's prior conviction and the search of his night club

amounted to "fatal error." According to counsel, "[t]he

inescapable conclusion is that the government knew of

other narcotic activity on [Weston's] part that was not part

of [his] trial" and "a juror could only be left with the

thought that Weston was a continuing target for narcotics

agents." Weston's Counseled Br. at 8. We disagree.6

_________________________________________________________________

6. We review for plain error those claims that were not preserved in the

district court, United States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000),

and for abuse of discretion for those claims that were preserved. United

States v. Davis, 183 F.3d 231, 256 (3d Cir. 1999).

The Federal Rules of Evidence provide that:

In all cases in which evidence of character or a trait of

character of a person is admissible, proof may be made

by testimony as to reputation or by testimony in the

form of an opinion. On cross-examination, inquiry is

allowable into relevant specific instances of conduct.

Fed. R. Evid. 405(a)(italics added). Therefore, the

government could inquire about James's awareness of

Weston's prior conviction and the execution of the search

warrant at Weston's night club once Weston put his

character in issue. See United States v. Scholl , 166 F.3d

964, 974-75 (9th Cir. 1999)(approving cross-examination of

opinion character witness by reference to defendant's

specific acts of misconduct). The district court has broad

discretion regarding the cross-examination of character

witnesses, and the court did not abuse that discretion in

allowing the government to challenge the character

testimony that Weston offered. United States v. Furst, 886

F.2d 558, 578 (3d Cir. 1989).

Furthermore, inasmuch as counsel did not object to

inquiry into Weston's prior drug-trafficking conviction

during James' cross-examination, Weston again has the

burden of establishing plain error.

The testimony regarding the search of Weston's night

club did not amount to plain error. For one thing, Mills

testified, without objection, that he had purchased drugs

there. Accordingly, we fail to see how inquiring into James'

knowledge of a search of that night club could have

prejudiced Weston; especially given the district court's

prompt limiting instruction. See United States v. Curtis, 644

F.2d 263, 269 (3d Cir. 1981)(no reversible error for

improper cross-examination of a reputation witness which

elicited only information that had already been introduced

into evidence).

Similarly, Duval Moore testified on direct examination

that he and Farris were lifelong friends, and cell mates in

jail. Moore told the jury that Farris told him that Farris had

a deal that included falsely implicating Weston in the

charged drug offenses. On cross-examination, Moore

continued to claim that Farris told him that the FBI

instructed Farris to lie about Weston. Moore also claimed

that Farris gave him a letter in which Farris stated that he

wanted to withdraw his guilty plea because he knew he

would have to lie for the government. However, according to

Moore, law enforcement officials refused to allow Farris to

withdraw his plea.

The government attacked Moore's credibility by eliciting

(without objection) that Moore had several convictions for

cocaine trafficking and violent crimes. Moore refused to

identify his suppliers during that line of questioning, and

the government responded by asking: "isn't it a fact that

you distributed Thomas Weston's cocaine and you're

covering for him here?" Moore denied that assertion and

Weston's counsel stated he objected "unless the prosecutor

has some proof of that." At a sidebar, the government then

proffered that Farris had informed investigators that he

once delivered a package of cocaine from Weston to Moore

for subsequent distribution by Moore. Weston's counsel

responded with a motion for a mistrial, "just for the record,"

which the court denied.

Weston now argues that testimony was "highly

inflammatory, . . . meant to prejudice, and [constitutes]

reversible error." However, at trial Weston did not object to

the inquiry because of its inflammatory or prejudicial

nature. Rather, counsel argued that the question was not

permissible unless the government had proof of the

assertion. Accordingly, we once again review for plain error.

Given the context of the cross-examination, we conclude

that the district court did not commit any error in allowing

the inquiry -- let alone, plain error. Evidence that Moore

and Weston had been drug dealing partners was relevant to

Moore's possible bias in favor of Weston. See United States

v. Abel, 469 U.S. 45, 52 (1984)(evidence regarding joint

membership of witness and defendant in criminal

organization was properly admitted to establish possible

bias of witness in favor of defendant). In addition, the jury

was properly instructed that answers, not questions,

constitute evidence, and Moore denied selling drugs for

Weston.7

_________________________________________________________________

7. In explaining why this evidence did not violate the strictures of Rule

404(b), we again emphasize the danger inherent in this kind of evidence.

Moreover, there was significant evidence of Weston's

involvement in the drug trade. Mills testified that he saw

Weston distribute drugs, that he purchased drugs from

Weston, and that Weston solicited him to sell drugs. Farris

testified that he purchased drugs with Weston. Weston

admitted that he had previously manufactured crack

cocaine, and Weston was captured on audiotape discussing

the charged conspiracy with Mills. Thus, the district court

did not err in allowing the limited inquiry into whether

Moore once sold drugs for Weston to establish the

relationship between the two. See United States v. Godinez,

114 F.3d 583, 588 (6th Cir. 1997)(no plain error for

improper question on cross-examination of defense witness

about whether defendant was involved in drug-dealing,

where cooperating co-conspirators had previously testified

extensively that defendant was the leader of a drug-

trafficking organization).

3. The District Court Erred by Refusing

to Strike All References to Crack Cocaine.

At the close of the government's case, Weston moved to

strike "any illusions to crack cocaine" from the jury's

consideration. He argued that the government's evidence

proved that Weston actually sold Agent Hilton cocaine

powder, not crack cocaine. However, the district court

denied Weston's motion. Here, Weston's counsel argues

that "injecting the specter of crack evokes the ire of any

jury," and is "so inflammatory that the mere

unsubstantiated allegation of involvement may be enough

to convict." Weston's Counseled Br. at 10. He therefore

asserts that the district court committed reversible error in

denying his motion.

As recited earlier, the superseding indictment charged

that Weston, Farris, Boone and Jones conspired to

distribute and to possess with intent to distribute more

_________________________________________________________________

See United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992)

("Although the government will hardly admit it, the reasons proffered to

admit prior bad act evidence . . . is often mixed between an urge to show

some other consequential fact as well as to impugn the defendant's

character.").

than 5 grams of crack cocaine and more than 200 grams of

cocaine. Although the substance that Weston actually

delivered was cocaine powder, more than sufficient evidence

was introduced at trial to support the conviction for

conspiring to manufacture and deliver crack cocaine. The

government produced testimony that Weston had, on two

occasions, agreed to supply crack cocaine to agent Hilton,

and Weston offered to personally convert the powder to

crack when Mills (the go-between) reminded Weston that

Hilton wanted crack.

At trial, Weston denied furnishing the cocaine that was

delivered to Hilton. However, the evidence certainly

supported the jury's conclusion that Weston was

responsible for that delivery. Weston's argument is really

bottomed upon an implicit assertion that he cannot be

convicted of conspiring to distribute crack without evidence

that he actually delivered that substance as opposed to

powder cocaine. However, one can certainly conspire to

deliver and distribute crack without the actual distribution

or delivery if the charge has otherwise been proven beyond

a reasonable doubt. See United States v. DeSimone, 119

F.3d 217, 223 (2d Cir. 1997). Consequently, the district

court properly refused counsel's motion to strike"any

illusions to crack cocaine" from the jury's consideration.8

_________________________________________________________________

8. The legal basis for counsel's motion is not clear. In the district

court,

he relied upon Fed. R. Crim. P. 29. However, we do not believe that rule

gives the district court the authority to strike evidence from the jury's

consideration. Rather, it authorizes the district court to "order the

entry

of judgment of acquittal of one or more of the offenses charged in the

indictment . . . after the evidence on either side is closed if the

evidence

is insufficient to sustain a conviction for such offense." Fed. R. Crim.

29. On appeal, counsel does not cite to any specific authority. Rather, he

characterizes his motion as one "to strike crack cocaine from the

indictment." Weston's Counseled Br. at 10. However, Weston never

mentioned the indictment in his motion to strike in the district court and

he never mentioned Fed. R. Crim. P. 7(d), which governs requests to

strike allegations from an indictment. In any event, we have ignored the

procedural intricacies and reached the merits of the argument.

4. The PSR Erroneously Calculated the Amount of

Drugs Attributable to Weston.

In his pro se brief challenging his sentence, Weston

argues that the district court erred at sentencing by

attributing 5 kilograms of cocaine powder to him that he

purchased in New York City.9 In Weston's view, only the

220 grams of cocaine powder that he caused to be delivered

to Agent Hilton during the two controlled buys identified in

the indictment can be attributed to him under the

Sentencing Guidelines.

However, a sentence in a criminal conspiracy is based

upon all relevant conduct and not merely offense conduct.

See United States v. Rivera-Maldonado, 194 F.3d 224, 228

(7th Cir.) (Since defendant was convicted of conspiring to

distribute controlled substances, she is responsible for all

"drugs [she] personally handled or anticipated handling,

and, under the relevant conduct rubric, for drugs involved

in additional acts that were reasonably foreseeable by

[her] and were committed in furtherance of the

conspiracy.")(citation omitted). The evidence here easily

established that Weston's relevant conduct included the

purchase and sale of approximately 5 kilograms of cocaine

powder.

Weston and Farris first met in the autumn of 1995 inside

Farris' telephone pager store in Asbury Park. Weston had

four pagers set to a single telephone number which he used

in dispatching his confederates to make cocaine sales. After

Weston told Farris that he was unhappy with his cocaine

suppliers, Farris drove Weston to New York City to meet a

man referred to as "Poppy", a Dominican from whom Farris

had been buying cocaine in lots of 200 to 700 grams. 10

Farris introduced Weston to Poppy as a "steady", and

described Weston as a high volume cocaine buyer. Weston

_________________________________________________________________

9. "When . . . construction of the Sentencing Guidelines is required on

appeal, the standard of review is plenary." United States v. Greene, 212

F.3d 758, 760 (3d Cir. 2000). Review of the district court's findings of

facts with regard to the sentence is clear error. United States v. Yeaman,

194 F.3d 442, 456 (3d Cir. 1999).

10. Farris diluted the cocaine and then sold the diluted product.

and Farris each gave Poppy $4,000 to purchase a total of

400 grams of cocaine. Thereafter, on five or six occasions,

Weston gave Farris cash in the average amount of $6,000

to purchase additional cocaine from Poppy. Farris charged

Weston 10 grams of cocaine (worth about $300) in return

for purchasing $6,000 to $7,000 of cocaine from Poppy. On

three or four other occasions, Weston bought cocaine from

Poppy for Farris in amounts of up to $8,000, and charged

Farris the same ten gram fee for that "service." On six or

seven other occasions, Weston went to Poppy and made

unspecified purchases of his own.

In early 1996, Weston and Farris went together to New

York City, where each purchased between $6,000 and

$8,000 of cocaine from Poppy. The evidence established

that Weston and Poppy appeared to be well acquainted with

each other. Weston last used Farris to purchase cocaine

from Poppy in late 1997 or early 1998. Farris' testimony

established that Weston's bulk cocaine purchases from

Poppy to Weston and/or Weston and Farris amounted to

between 4.8 and 5.7 kilograms of cocaine. The Sentencing

Guidelines provide that "[t]ypes and quantities of drugs not

specified in the count of conviction may be considered in

determining the offense level. See S 1B1.3(a)(2)(Relevant

Conduct)." U.S.S.G. S 2D1.1, Application Note 12.

Relevant Conduct for a drug trafficking conviction

includes not only all controlled substances involved"during

the commission of the offense of conviction," but also those

substances involved as "part of the same course of conduct

or common scheme or plan as the offense of conviction."

U.S.S.G. S 1B1.1(a)(2). Consequently, all of Weston's drug-

trafficking that was part of the same course of conduct or

common scheme must be included in the drug quantity,

regardless of whether a particular transaction resulted in a

conviction. See U.S.S.G. S 1B1.3, Application Note 3

(application of S 1B1.3(a)(2) "does not require the defendant,

in fact, to have been convicted of multiple counts.").

Weston's multiple drug-trafficking offenses, including the

offense of conviction, and his purchases from Poppy, were

part of a "common scheme or plan," because they were

"substantially connected to each other by at least one

common factor, such as . . . common accomplices, . .. [or

a] common purpose." U.S.S.G. S 1B1.3, Application Note

9(A). Weston and Farris were clearly accomplices in the

offense of conviction and in their joint purchases of cocaine

powder from Poppy. Farris introduced Weston to Poppy,

identified Weston as a reliable bulk purchaser of cocaine,

purchased cocaine from Poppy for Weston, and gave

Weston money to purchase cocaine from Poppy. Farris also

arranged for Boone and Jones to deliver Weston's cocaine

in the charged conspiracy. Therefore, the district court

properly held Weston accountable for all the cocaine that

he purchased from Poppy; either alone or jointly with

Farris.

The purchases from Poppy and the offense of conviction

also "qualifi[ed] as part of the same course of conduct

[because] they [were] sufficiently related or connected to

each other as to warrant the conclusion that they were part

of [an] . . . ongoing series of offenses." U.S.S.G. S 1B1.3,

Application Note 9(B). The conduct all occurred within the

small geographic area in or near Asbury Park, involved

cocaine that Weston sold through intermediaries, and it

involved the same co-conspirators, i.e., Weston and Farris.

Accordingly, we find no merit in Weston's claim that the

5 kilograms of cocaine purchased in New York should not

be attributed to him under the Sentencing Guidelines.

5. The District Court Erred by Crediting Farris'

Testimony on the Volume of Drugs Weston

Distributed.

In his pro se brief, Weston relies upon United States v.

Miele, 989 F.2d 659 (3d Cir. 1993), in arguing that the

district court committed clear error by crediting Farris'

testimony regarding the volume of cocaine that he and

Weston purchased from Poppy. Weston claims that Farris'

testimony was internally inconsistent.

In Miele, the district court's estimate of drug quantity

rested upon the unsworn hearsay statement of an

informant. That informant later contradicted that estimate

in sworn testimony he gave during the trial of Miele's co-

defendants. We found that the "vast disparity between [the

informant's] estimate in the PSI and the significantly lower

estimates he provided at the co-defendants' trial cast [ ]

doubt on the reliability of the PSI's estimate." Id. at 664.

Since the district court never explained why it accepted the

informant's higher estimate in calculating the drug

quantity, we remanded for resentencing. Id.

Here, however, the district court based the volume of

cocaine on Farris' sworn trial testimony, and the court

concluded that the testimony was reliable. The testimony

remained unshaken after vigorous cross-examination.

Moreover, the "vast disparity" in estimates of drug quantity

that we found so troubling in Miele is absent here. Farris'

testimony was neither speculative nor contradictory.

Weston argues that Farris' testimony was contradictory

because Farris first testified on direct that he and Weston

first went to New York to buy cocaine from Poppy in 1995,

but then, on cross-examination, testified that the first trip

was in 1996. Although Farris did initially testify that the

first trip was in 1995, he immediately corrected himself and

explained that it was in 1996. Moreover, even if he had not

done so, the resulting discrepancy would not have been

analogous to the discrepancies in Miele. Slight memory

lapses hardly compel a sentencing court to completely

reject testimony about drug quantity. This is particularly

true where, as here, it was immediately corrected, and

involves an issue that is not at all relevant to the substance

of the testimony about drug quantity. See United States v.

Huddleston, 194 F.3d 214, 224 (1st Cir. 1999)(rejecting

argument that district court, in calculating the drug

amount, should not have relied on testimony of an

informant whose "testimony regarding dates and times was

fuzzy," because "such credibility calls are grist for the trial

court's mill."). Given Farris' familiarity with drug

transactions, his estimate of volume was appropriately

considered by the district court. It is "not unreasonable . . .

to believe that the testimony of a man experienced in drug

deals was sufficient to establish an appropriate drug

quantity." Id.

Weston also alleges that Farris' testimony should not be

credited because of an inconsistency regarding the

wholesale price of cocaine. Farris said that he paid $20 a

gram for cocaine that he purchased from Poppy in New

York in bulk. He also said that he and Weston paid Poppy

$4,000 each for "close to half a key [kilogram]." Finally,

Farris testified that he and Weston would charge each other

$300 to pick up cocaine from Poppy, and ten grams of

cocaine (i.e., $30 a gram) were accepted in payment.

However, as the government points out, Farris' accounts

are easily reconciled. At $20 a gram when bought in bulk,

400 grams, costing $8,000, ($4,000 from Weston and

$4,000 from Farris) is relatively "close to half a key," i.e.,

500 grams. Farris testimony that smaller quantities (i.e. 10

grams) cost more (i.e. $30 a gram) than bulk purchases

simply reflects the "economies of scale" that apparently

operated in this illegal market.

Finally, Weston complains that Farris' testimony should

not be credited because Farris did not give a dollar amount

for each of the quantities of cocaine that either he or

Weston purchased from Poppy. Therefore, argues Weston,

the district court's estimate of the total volume of drugs

was clearly erroneous. We disagree. Farris recited particular

dollar amounts for several of the purchases, estimated the

average amount of money spent during other transactions,

and estimated the total number of transactions. This is

sufficient to support the district court's estimate of the total

amount of cocaine that Weston and Farris bought from

Poppy. See United States v. Grandados, 202 F.3d 1025,

1029 (8th Cir. 2000)(not clear error for district court to

estimate unknown quantities of drugs involved in certain

transactions by reference to known quantities involved in

other, similar transactions).

6. The District Court Erred by Enhancing Weston's

Sentence for Obstruction of Justice.

Section 3C1.1 of the Sentencing Guidelines provides for

a two level enhancement if a defendant "willfully obstructed

or impeded, or attempted to obstruct or impede, the

administration of justice." Examples of obstruction include:

"threatening, intimidating, or otherwise unlawfully

influencing . . . a witness, or attempting to do so;"

"suborning, or attempting to suborn perjury"; and "other

conduct prohibited by the obstruction of justice provisions

under Title 18, United States Code." U.S.S.G.S 3C1.1,

Application Note 4(a).

In the Presentence Report, the Probation Office found

that Weston obstructed justice and recommended a two

level enhancement under U.S.S.G. S 3C1.l. This was based

upon the letter that Weston attempted to coerce Farris into

signing. PSR P 38. Weston objected, claiming that Farris'

account of the circumstances surrounding the purported

letter were not credible. However, the district court

observed Farris' testimony and concluded otherwise. The

court concluded "this is one of the most clear and

convincing episodes of obstruction of justice that I have

seen." The court found that it even rose to a level that

exceeded the degree of obstruction encompassed within the

"heartland" of S 3C1. It would have been difficult to

conclude otherwise.

In his pro se brief, Weston challenges Farris' credibility

by pointing to Farris' cross-examination testimony about a

gold cadillac Weston purportedly owned. However, Weston's

ownership of a gold Cadillac has absolutely nothing to do

with his conviction. The district concluded that Farris

testified credibly about Weston's obstruction activity, and

we afford that finding deference. United States v. Igbonwa,

120 F.3d 437, 440 (3d Cir. 1997). Given the credible

testimony that Weston directly and indirectly attempted to

coerce Farris into signing a copy of the aforementioned

exculpatory letter, the district court did not err in

concluding that a two level enchantment for obstruction of

justice was warranted.

IV. THE GOVERNMENT'S CROSS-APPEAL

IN WESTON'S CASE

The government argues that the district court erred in

reducing Weston's Offense Level and Guidelines Range by

ignoring credible evidence that he manufactured and

distributed at least 200 grams of crack cocaine. The

government claims that Weston's Offense Level should be

increased at least to the level applicable to the 200 grams

of crack cocaine that Weston manufactured on a single

occasion.

The government relies upon the crack that Weston

personally manufactured from the powder he and Farris

purchased from Poppy in New York City. Earlier, we noted

that Weston and Farris bought cocaine powder in New York

City from Poppy for distribution in Asbury Park. Weston

told Farris that crack cocaine sold faster on the street than

cocaine powder. Weston also told Farris that he (Weston)

personally manufactured crack from cocaine powder and

could produce 140 grams of crack from every 100 grams of

cocaine powder used. After one of Farris' customers

complained about some cocaine he had purchased from

Farris, Farris went to Weston to ask if Weston could

convert cocaine powder into crack. When Farris

encountered Weston, Weston was in the middle of

preparing a batch of crack. Farris testified that he saw

"maybe a couple of hundred grams" of powder cocaine on

a plate, and some baking soda. In Farris' presence, Weston

placed the mixture of cocaine powder and baking soda into

a pot of boiling water and held the pot over the stove. After

the water boiled off, the hard, off-white crack cocaine

remained as a residue in the pot. Farris was very familiar

with the appearance of crack having ingested it in the past.

On another occasion, while Weston was selling Farris

cocaine powder on the street, Weston dropped a clear

plastic bag containing 7 to 10 grams of crack cocaine on

the ground.

Weston also repeatedly solicited Mills to sell crack

cocaine for him. He told Mills that Mills could multiply his

daily income from hot dog sales (about $150 a day) by ten

or twenty times if he sold crack cocaine for Weston. Weston

said that a street-level dealer for his drug-trafficking

organization could earn at least $1,500 and as much as

$3,000 a day in commissions from the sales of crack

cocaine.

Weston also told Mills that Weston could "lay out" or

cook powder cocaine in order to transform it into"rock

cocaine," i.e., crack. Weston said he could convert an ounce

of powder cocaine into an ounce and a half of crack. On

one occasion, Weston showed Mills some crack cocaine and

told Mills, "this is the game you need to get into to make a

lot more money."

Mills sold hot dogs from a pushcart in front of a night

club called the "Mishypoo." The club was frequented by

numerous crack dealers, including those working for

Weston. The dealers would sell crack directly outside the

night club, in plain view of Mills. When the crack dealers

went inside the night club, they would occasionally ask

Mills to come into the bar and tell them when Weston

arrived so they could get their inventory from him. Mills

testified that Weston drove to the club two to three times a

week. When he arrived, he would summon the dealers to

his car. After a few minutes they would leave with packages

of crack cocaine to sell.

In addition, Mills later brokered the two aforementioned

crack deals between Weston and Agent Hilton. During his

direct testimony, Weston admitted to previously

manufacturing crack, and being convicted for offenses

involving crack in Maryland several years earlier. He

testified that it was common to refer to the manufacture of

crack using terms such as: "cook" cocaine,"lay it out," and

"bring it back." He explained that the process requires

boiling cocaine powder, baking soda and water together and

that if a large amount of baking soda was used, the amount

of crack produced would exceed the amount of cocaine

powder used. That is consistent with Mills' and Farris'

testimony about the crack Weston manufactured.

The PSR stated that the trial evidence established that

Weston (personally or through Farris) obtained a minimum

of 5 kilograms of powder cocaine from Poppy, the New York

City supplier. PSR P 31. According to the PSR, a

preponderance of evidence established that Weston

converted most of the 5 kilograms of cocaine powder into

crack. Id. The gram weight of that crack was at least equal

to the gram weight of the powder cocaine. Id. Accordingly,

the PSR recommended that Weston be held accountable for

at least 1.5 kilograms of cocaine base. Id. The PSR thus

applied a Base Offense level of 38 under U.S.S.G.

S 2D1.1(c)(1).11 PSR PP 42-51.

_________________________________________________________________

11. The Drug Quantity Table requires its highest Offense Level of 38 if

the defendant is responsible for "1.5 KG or more of `cocaine base.' "

U.S.S.G. S 2D1.1(c)(1).

Weston objected to that calculation, and claimed that he

should only be held accountable for the 220 grams of

powder cocaine that was delivered to Agent Hilton. At the

first of three sentencing hearings, Farris testified that,

based on his extensive experience as a seller of cocaine

powder, he could accurately estimate the weight of a batch

of cocaine powder from a visual inspection. After argument

by the parties, the district court adopted the PSR's

calculation that Weston was responsible for at least 1.5

kilograms of crack cocaine (and 5 kilograms of cocaine) and

was subject to a Total and Adjusted Offense Level of 40.

The hearing was then continued to another date to consider

another issue.

At the second sentencing hearing, Weston challenged the

trial testimony that he was an extensive crack dealer.

However, the district court rejected Weston's challenge

stating:

I presided over the trial and also over the [first]

sentencing hearing [at which Farris testified]. . . and I

was able to make determinations as to credibility. .. .

It seems to me that there's no reason to revisit my

prior ruling contrary to the defendant's position

[regarding the applicable drug type and amount].

Neither Mills nor Farris can be found incredible.

Rather, they -- I found them to be quite credible as to

the defendant's position himself that he was aware of

and knew how to prepare crack cocaine . . . . My prior

ruling will stand.

Even though Weston was properly held responsible for at

least 1.5 kilograms of crack cocaine (and therefore subject

to an Adjusted Offense Level of 40 and a Guidelines Range

of 325 to 405 months), Weston challenged the Adjusted

Offense Level and Guidelines Range by continuing his

attack on Farris' credibility. However, the district court

correctly pointed out that, even without any of the crack

that Weston manufactured outside of Farris' presence,

Farris saw Weston prepare approximately 200 grams of

crack on one occasion alone.12 Therefore, based only upon

_________________________________________________________________

12. As recited earlier, Farris testified during the trial that he

personally

observed Weston convert a batch of "maybe a couple of hundred grams"

of cocaine powder into crack.

those 200 grams, Weston's base offense level would be 34,

pursuant to U.S.S.G. S 2D1.1(c)(3), i.e.,"At least 150

G[rams] but less than 500 G[rams] of Cocaine Base."13 The

district court then adjourned the sentencing hearing to the

next day in order to consider additional documents that

Weston had submitted.

At the third sentencing hearing, the district court

repeated that it "remained convinced of [Farris'] credibility."

It also noted that the evidence established that Farris saw

Weston manufacturing "a fairly substantial quantity" of

crack on one occasion. The court noted that the evidence

showed that Weston was asked to manufacture crack

cocaine on a number of occasions, and that Weston talked

about crack to Farris and Mills. Nonetheless, the district

court concluded that the evidence failed to establish the

amount of crack cocaine attributable to Weston with

sufficient precision. The court explained:

[t]he danger is that although [Weston] may be a

substantial crack dealer, we don't know how much

crack he was actually providing, and we want to be

careful not to go from a reasonable extrapolation into

the possibility of conjecture, especially where the

guidelines are so severe.

After reiterating that Farris testified truthfully about

Weston's drug-trafficking and that the government had

proven that Weston was a "substantial drug dealer," the

district court decided that it would give Weston the"benefit

of the doubt." Therefore, based on Farris' testimony about

the volume of cocaine powder he and Weston purchased in

New York City from Poppy, the court assigned between 3 to

5 kilograms of powder cocaine to Weston. That attribution

rested on a finding supported "by clear and convincing

evidence," and not merely by a preponderance of the

evidence. It resulted in a base offense level of 30. U.S.S.G.

S 2D1.1(c)(5). However, the district court continued to have

concerns about the amount of crack cocaine involved. The

court noted:

_________________________________________________________________

13. The Guidelines Drug Quantity Table states that " `Cocaine base,' for

purposes of this guideline, means `crack.' " U.S.S.G. S 2D1.1(c)(1), Note

(D).

As far as cocaine base, we know that [Weston] was in

possession of some crack cocaine. In the testimony of

Farris we don't have a calculation of the precise

amount. Was it, as the government speculates, about

200 grams? Was it less? You can certainly safely say

that it was some amount. I think that's encompassed

in level 30 as well as far as the defendant's activities as

a crack cocaine dealer.

The government responded by reminding the district

court that Farris watched Weston convert about 200 grams

of cocaine powder into a like amount of crack on a single

occasion. Therefore, argued the government, assuming a

one-to-one ratio, Farris' estimate of 200 grams of crack was

50 grams (or 33%) more than the amount required for

application of a Base Offense Level of 34 under U.S.S.G.

S 2D1.1(c)(3), i.e., at least 150 grams but less than 500

grams of crack. The district court noted that the

government's position was "persuasive and reasonable."

Nevertheless, the court "prefer[red] to base [its] ruling upon

the clear amount of powder cocaine which is here rather

than the extrapolation of the crack cocaine." The court then

opined: "as I say, I may well be wrong. I don't know. I may

well be too lenient, but we'll see whether people feel I'm too

lenient when the time comes. I don't intend to be lenient."

Finally, the district court restated its position that it was

basing its decision on drug quantities involved only on the

basis of the cocaine powder and not crack cocaine:

The government makes a very strong argument that we

should consider that there was 200 grams of cocaine

base when he was cooking it, and therefore, it should

be level 34. I say that is a reasonable position. I prefer

to base my ruling on the powdered cocaine level here,

but I do consider that, and I do consider [Weston's]

crack cocaine activities -- including that testimony

from Farris as to the substantial amounts of cocaine

and the testimony of Mills concerning crack cocaine

and [Weston's] own statements about the ability to

crack -- to cook crack cocaine.

Not unexpectedly, the government argues that Weston's

sentence must be vacated and the matter remanded so that

the district court can hold Weston responsible for at least

the 200 grams of crack which Farris estimated he saw

Weston manufacture.14 Therefore, the government argues

that Weston's Base Offense Level should be 34. U.S.S.G.

S 2D1.1(c)(3) ("At least 150 G but less than 500 G of

Cocaine Base.").

We applaud the district court's caution and candor.

However, under U.S.S.G. S 2D1.1, it is clear that the Base

Offense Level for a drug-trafficking offense is a function of

the quantity of the drugs involved in the offense, see United

States v. Paulino, 996 F.2d 1541, 1543 (3d Cir. 1991), and

the Guidelines Application Notes require that "the total

quantity" of drugs involved in the count of conviction and

all relevant conduct "shall be aggregated to determine the

scale of the offense." U.S.S.G. S 2D1.1, Application Note 12

(emphasis added). The Application Notes further requires

that "[w]here there are multiple transactions or multiple

drug types, the quantities of drugs are to be added" using

the drug equivalency tables. Id. Application Notes 6 and 10

("In each case, convert each of the drugs to its marijuana

equivalent, add the quantities, and look up the total in the

Drug Quantity Table to obtain the combined offense level.").

Similarly, the Guidelines Commentary provides that where

"there is no drug seizure or the amount seized does not

reflect the scale of the offense, the sentencing judge shall

approximate the quantity of the controlled substance."

U.S.S.G. S 2D1.1, Application Note 12 (emphasis added).

Consequently, the district court must "determine the

amount and kind of controlled substance for which[the]

defendant should be held accountable -- and then .. .

impose a sentence that varies depending on the amount

and kind." Edwards v. United States, 523 U.S. 511, 513-14

(1998). We agree with the district court's concern that

"recognition of the need to estimate . . . is not a license to

calculate drug amounts by guesswork." United States v.

Paulino, 996 F.2d at 1545. "Instead, the sentencing court

must carefully scrutinize the government's proof to ensure

_________________________________________________________________

14. By focusing on the crack cocaine Farris saw Weston manufacture on

one occasion, we assume that the government has conceded that the

evidence concerning Weston's manufacturing and/or distribution of any

other crack cocaine is too imprecise to enable the sentencing court to

properly calculate drug amounts, other than by sheer speculation.

that its estimates are supported by a preponderance of the

evidence." Id.

However, the district court's drug quantity calculation

here cannot stand. The district court never doubted Farris'

credibility. Evidence at the last sentencing hearing caused

the district court to expressly note that "one time [Farris]

saw [Weston] cooking up a quantity of which was not

measured but which he saw and looked like a fairly

substantial quantity." Yet, the district court was concerned

because Farris, though credible, was unable to state"the

precise amount" of crack that he saw Weston manufacture

on that one occasion.

As noted above, Farris' trial testimony established that he

saw Weston preparing crack cocaine from "maybe a couple

of hundred grams" of powder cocaine and some baking

soda. Weston placed the mixture of cocaine powder and

baking soda into a pot of boiling water and held the pot

over a stove. There is no doubt that Farris was sufficiently

familiar with crack to be able to properly identify the

residue that Weston produced from the "couple hundred

grams" of powder on that one occasion. Moreover, Farris

testified at the first sentencing hearing that his experience

as a cocaine dealer allowed him to accurately estimate the

weight of a batch of cocaine powder based only upon a

visual inspection.

The government relies upon Farris' estimate of a couple

hundred grams of powder on this one occasion, and the

credible testimony that he could accurately estimate the

weight of a batch of cocaine powder. Weston stated that he

could produce at least an equivalent amount of crack from

a like amount of powder. Thus, argues the government,

Farris' testimony is sufficient to establish that Weston

manufactured at least 200 grams of crack.

The district court explained its reluctance to factor those

200 grams of crack into Weston's sentence as follows: "In

the testimony of Farris we don't have a calculation of the

precise amount. Was it, as the government speculates,

about 200 grams? Was it less?" Yet, the district court was

convinced that Weston "was in possession of some crack

cocaine," and appeared to be convinced that Weston "may

be a substantial crack dealer." Finding itself in a quandary,

the district court apparently sought middle ground by

finding that Weston was responsible for the powder cocaine

and for "some amount" of crack, but found that the crack

was "encompassed in level 30 as well as far as the

defendant's activities as a crack cocaine dealer."

However, that conclusion was erroneous. Since the

district court found that Weston was responsible for"some

amount" of crack cocaine as well as powder, it was required

to convert each controlled substance into a volume of

marijuana, pursuant to the Guidelines' "Drug Equivalency

Tables," and then select the Offense Level that applied to

the aggregated quantity of marijuana. U.S.S.G. S 2D1.1,

Application Notes 6 and 10; see United States v. Brown, 36

F.3d 655, 663 (7th Cir. 1994). The district court was

therefore required to consider all of the controlled

substances, of whatever type, that Weston was responsible

for. Its failure to aggregate the drug types and quantities

requires us to vacate Weston's sentence and remand for

resentencing.

The district court's conclusion that the crack was

encompassed in the Base Offense Level of 30 is erroneous

because it is tantamount to holding that Weston was not

responsible for any crack whatsoever. A Base Offense Level

of 30 would be proper if the district court had found that

Weston was responsible only for 3 to 5 kilograms of cocaine

powder. U.S.S.G. S 2D1.1(c)(5)("At least 3.5 KG but less

than 5 KG of Cocaine."). However, once the district found

Weston responsible for any amount of crack cocaine, it had

to apply a Base Offense Level that would reflect that

additional quantity of that controlled substance.

For example, if we assume that Weston was responsible

for 5 kilograms of cocaine powder, that amount of cocaine

powder would place him in Base Offense Level 30. Under

the Guideline's drug equivalency formula of 200 grams of

marijuana per gram of cocaine, the 5 kilograms of cocaine

would represent 1,000 kilograms of marijuana. U.S.S.G.

S 2D1.1, Application Note 10, Drug Equivalent Tables. One

thousand kilograms of marijuana is the ceiling for Base

Offense Level 30. Consequently, any additional marijuana

equivalents would require a higher base offense level.

Therefore, if the district court found that Weston was

responsible for 5 kilograms of cocaine powder and any

measurable amount of crack cocaine -- which is equivalent

to 20 kilograms of marijuana per gram -- it would have had

to conclude that Weston was responsible for more than

1,000 kilograms of marijuana and it should therefore have

applied a Base Offense Level above 30.

Moreover, even if we assume that Weston was responsible

only for the lowest amount of cocaine powder covered by

Level 30 (i.e., 3 kilograms), that quantity translates into a

marijuana equivalent of 700 kilograms. Thus, any amount

of crack above 15 grams (the equivalent of 300 grams of

marijuana) would place Weston above the ceiling for level

30 and require a higher level. The evidence here certainly

establishes that Weston was responsible for more than 15

grams of crack. Farris not only testified that he saw Weston

transform "maybe a couple of hundred grams" of cocaine

powder into crack, but also testified about another occasion

when he was buying cocaine powder from Weston on the

street. During that encounter, Weston dropped a clear

plastic bag containing 7 to 10 grams of crack on the

ground. Thus, Weston was clearly responsible for more

than 15 grams of crack.

We agree that it would be highly problematic to attempt

to attribute all of the crack that was mentioned to Weston

for Guidelines purposes. That level of precision is not

supported by the generalized estimates on this record.

However, we conclude that the court erred in not at least

attributing the 200 grams that Farris saw Weston

manufacture. Given the totality of the evidence here, it is

beyond debate that Weston manufactured and/or

distributed, at least that much. We will therefore vacate

Weston's sentence and remand for the district court to

make an appropriate determination of Weston's Base

Offense Level in light of our discussion.15, 16

_________________________________________________________________

15. We take no position on the government's claim that on remand the

district court should resentence Weston using a Base Offense Level of

34. The district court can best make that determination in the first

instance.

16. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme

Court held that "[o]ther than the fact of a prior conviction, any fact

that

V. BOONE'S APPEAL

Boone makes six arguments in his appeal. We consider

each separately.

1. The District Court Erred by Admitting Evidence of

Boone's Prior Drug-Trafficking.

Boone's defense at trial was that even though he

accepted $100 dollars to deliver a bag that happened to

_________________________________________________________________

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt." Apprendi was not raised as an issue by Weston and was only

briefly alluded to at oral argument. However, in an over-abundance of

caution, we do think that a short discussion of Apprendi is warranted.

The superseding indictment charged Weston, Boone, Farris and Jones

with conspiring to distribute and possess with intent to distribute more

than 5 grams of cocaine base (crack) and more than 200 grams of

cocaine contrary to 21 U.S.C. S 841(a)(1) in violation of 21 U.S.C. S 846.

As noted above, the government filed an enhanced penalty information

against Weston, pursuant to 21 U.S.C. SS 841(b)(1)(B) and 851(a)(1). That

information referenced a 1992 state felony conviction for possession of

crack cocaine with intent to distribute, and Weston does not now

challenge that enhancement. As a consequence of his conviction, Weston

faces a possible statutory maximum penalty of life imprisonment. See 21

U.S.C. S 841(b)(1)(B) ("If any person commits such a violation [of S

841(a)]

after a prior conviction for a felony drug offense has become final, such

person shall be sentenced to a term of imprisonment which may not be

less than 10 years and not more than life imprisonment. . . .").

We recently applied Apprendi, and reiterated the proposition that the

limitations of Apprendi do not apply unless the quantity calculation

increases the statutory maximum the defendant is exposed to. If it does,

the calculation must be submitted to the jury and established beyond a

reasonable doubt. United States v. Vazquez, 271 F.3d 93, 98 (3d Cir.

2001). Here, however, the district court's drug calculation on remand

cannot possibly increase the statutory maximum. That maximum is

already set at life because of Weston's prior drug conviction. See United

States v. Cepero, 224 F.3d 256, 2676 n. 5 (3d Cir. 2000) (en banc)

(Apprendi does not apply where application of Sentencing Guidelines

does not implicate a fact that would increase the penalty beyond the

statutory maximum). See also United States v. Williams, 235 F.3d 858,

862-863 (3d Cir. 2000)(Apprendi does not apply to a situation where the

district court decides a fact that increases a defendant's sentence under

the Guidelines, but the sentence imposed does not exceed the statutory

maximum).

contain cocaine, he was an ignorant "go-fer" and did not

know what he delivered. To meet that defense, the district

court permitted the government to admit evidence of

Boone's prior drug-trafficking activities pursuant to Fed. R.

Evid. 404(b). However, the court gave a limiting instruction

in which it informed the jury that the evidence was being

admitted solely on the issue of Boone's knowledge of the

contents of the bag, and to demonstrate his prior

relationship with Farris and Mills. With that caution, the

court admitted evidence that, on different occasions, Mills

had observed Boone selling cocaine inside of the nightclubs

where Mills worked. The district court also admitted

evidence that Boone sold cocaine supplied by Farris. In

addition, even though the government also tried to admit

Boone's two prior drug-trafficking convictions into evidence,

the district court limited the government to a stipulation

that Boone had previously twice possessed cocaine with the

intent to deliver it. Boone argues that the district court

abused its discretion in admitting this evidence.

Rule 404(b) provides in relevant part that: "Evidence of

other crimes, wrongs or acts . . . may . . . be admissible . . .

for [certain] purposes, such as motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of

mistake or accident." (Emphasis added). Under Rule 404(b),17

evidence of other criminal conduct is "admissible whenever

relevant to a case other than [to show] the defendant's

criminal propensity." United States v. Sriyuth, 98 F.3d 739,

745 (3d Cir. 1996). The prime inquiry is whether the

evidence is probative of a material issue other than

character. Huddleston v. United States, 485 U.S. 681, 687

(1988).

The prior crimes evidence was admitted to show that

Boone was familiar with drug-trafficking practices and to

establish that his relationship with Farris and Mills

included drug-trafficking. The evidence demonstrated his

"knowledge," "intent" and "lack of mistake or accident." It

was properly admitted to rebut his defense of ignorance,

and not to establish a propensity for criminal conduct.

_________________________________________________________________

17. Admission of evidence under Rule 404(b) is reviewed for abuse of

discretion. United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996).

Boone does not complain about the limiting instructions

the trial court gave. The court cautioned the jury when the

evidence was admitted and again as part of the final jury

instructions, and those instructions were adequate to

address concerns that the evidence would be used for an

improper purpose.

Boone argues that evidence of his prior drug-trafficking

offenses established no "logical inferences" that he knew

the bag contained cocaine, as opposed to "stolen jewelry, or

platinum dust." Boone's Br. at 9. However, that very

argument illustrates the propriety of admitting evidence of

Boone's prior drug involvement. The government correctly

responds that evidence of one's familiarity with the

subterfuge and concealment inherent in drug-trafficking

was relevant to the issue of whether Boone may have

believed the bag contained contraband other than cocaine.

See United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st

Cir. 1990).18

Finally, we conclude that evidence of Boone's prior drug-

trafficking was harmless in any event. Farris testified that

he asked Boone to deliver cocaine to Agent Hilton posing as

"Malik," and that Boone agreed. Hilton testified that he

received the cocaine from Boone in a manner that was

characteristic of clandestine drug transactions and that the

cocaine was plainly visible to Boone. Mills then testified

that Boone acknowledged that he got involved because he

was then actively dealing drugs.

_________________________________________________________________

18. In Ferrer-Cruz, the court stated:

Since one who has previous experience with drugs is . . . more

likely

to recognize (and hence to know) that the bags' contents were drugs

that one without such experience, the inference at issue do not

involve character. . . . Moreover, the probative value of the

evidence

. . . is quite high. . . . [A] juror might have though that the

government failed to prove anything beyond [appellant's] presence

a car with cocaine; and, believing that the government failed to

prove [appellant] knew it was cocaine or that he intended to

deliver

cocaine to the co-defendants, such a juror might have voted to

acquit. The evidence of a past conviction might have helped

convince a juror of guilt through its permissible suggestion that

[appellant] knew about drugs and drug possession.

899 F.2d at 138.

Boone also challenges the district court's admission of

Mills' testimony that between 1984 and 1986, he observed

Boone selling cocaine inside the restrooms of two

nightclubs where Mills worked. In pressing this objection,

he concedes that the evidence was "minimally relevant to

knowledge." He claims, however, that its probative value

was outweighed by its prejudicial effect and it was therefore

inadmissible under the balance required by Fed. R. Evid.

403. Boone did not object to this testimony under Rule 403

in the district court. We therefore again review for plain

error, but Boone does not argue plain error even now.

Rather, he spends a great deal of time arguing that Mills'

testimony was incredible or unreliable. That was clearly an

issue for the jury to resolve, and it apparently did so in

favor of the government. Moreover, given Boone's"innocent

go-fer" defense, this evidence was proper under Rule 403.

2. Sufficiency of the Evidence.

Boone argues that evidence of his knowledge of the

contents of the package he delivered was insufficient to

sustain his conviction. He insists that he "never shared a

unity of purpose with Farris, and that he never even spoke

with Weston during the time-frame of the charged

conspiracy." He maintains that "he was never told, and had

no dependable basis to know, what was in the package he

delivered to Agent Hilton." Boone's Br. at 17. However,

Farris' testimony by itself is sufficient to support Boone's

conviction, and the jury apparently credited that testimony.

Farris testified that he: (1) selected Boone to deliver the

cocaine to Hilton because of Boone's long-standing ties to

Mills and Boone's prior drug dealing for Farris; (2) told

Boone that he wanted him to deliver cocaine and offered

Boone $100 and an eighth of an ounce of cocaine for the

job; and (3) Boone took the cocaine and agreed to deliver it.

See United States v. Hernandez, 962 F.2d 1152, 1156 (5th

Cir. 1992)(uncorroborated testimony of cooperating co-

conspirators that they had conspired to sell drugs, and that

appellant knew of, joined, and helped effectuate the

conspiracy, was sufficient to support conviction for violation

of 21 U.S.C. S 846).

Nonetheless, Boone argues Farris' testimony is not

sufficient because, according to Boone, on cross-

examination Farris "clarified that he only told Boone he had

a deal for him, and there was no specific mention of drugs."

Boone's Br. at 17. However, Boone mischaracterizes the

testimony Farris offered on cross-examination. When asked:

"what exactly did [he] say to Mr. Boone," Farris testified:

That I had something for him, a deal going in on a few

days and I asked him, did -- did he want to be a part

of it or something like that.

Farris failed to offer a verbatim recitation of what he told

Boone, even though he was asked for one. Farris related

only that he said "something like that." Farris' testimony

was not an admission that he failed to tell Boone that the

package Boone delivered contained cocaine. Moreover, this

argument again establishes the propriety of the

aforementioned 404(b) evidence. Assuming that Farris only

discussed the delivery in vague terms such as "doing a

"deal," it was important for the jury to understand Boone's

familiarity with the kind of vagaries that could cloak

discussions of a drug delivery.

In any event, the evidence was sufficient to sustain

Boone's conviction regardless of any inconsistency in Farris'

direct and cross-examination testimony. A jury is free to

believe part of a witness' testimony and disbelieve another

part of it. United States v. Prince, 883 F.2d 953, 958 n.3

(11th Cir. 1989). Thus, a witness' testimony is not

insufficient to establish a point simply because he or she

later contradicts or alters it. See United States v. Stirone,

311 F.2d 277, 284 (3d Cir. 1963)(evidence was sufficient

even though testimony of a government witness was to

some extent self-contradictory). Furthermore, we review the

sufficiency of the evidence in the light most favorable to the

verdict winner, and we credit all reasonable inferences that

support the verdict. United States v. Riddick , 156 F.3d 505,

508 (3d Cir. 1998). We will sustain the verdict if any

rational trier of fact could have found the essential

elements of the crimes beyond a reasonable doubt based

upon the evidence viewed in that light. United States v.

Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996).

The jury here could easily have credited Farris' direct

testimony that Boone agreed to deliver what he was told

was a package of cocaine, notwithstanding any purported

inconsistency on cross-examination. Accordingly, we

conclude that the evidence was sufficient to support

Boone's conviction.

3. The District Court Erred by Not Granting

a New Trial Based on the Government's Failure

to Disclose Brady Material.

Boone claims that the government failed to disclose two

items of exculpatory information in violation of Brady v.

Maryland, 373 U.S. 83 (1963) and its progeny, and he is

therefore entitled to a new trial.

In Brady v. Maryland, the Supreme Court held that

"suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution." 373 U.S. at 87. The affirmative duty to

disclose includes impeachment evidence as well as

exculpatory evidence. United States v. Bagley , 473 U.S.

667, 676 (1985). In Strickler v. Greene, 527 U.S. 263 (1999),

the Court wrote:

[T]he term "Brady violation" is sometimes used to refer

to any breach of the broad obligation to disclose

exculpatory evidence--that is, to any suppression of

so-called "Brady material"--although, strictly speaking,

there is never a real "Brady violation" unless the

nondisclosure was so serious that there is a reasonable

probability that the suppressed evidence would have

produced a different verdict. There are three

components of a true Brady violation: The evidence at

issue must be favorable to the accused, either because

it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must

have ensued.

Id. at 281-82.

The first claimed Brady violation is a statement of a

confidential informant. Boone first learned about this

confidential informant in the Presentence Report, which

read, at P 9, as follows:

In early 1997, [law enforcement officials] received

information from a confidential source19 . . . that

several individuals, including THOMAS WESTON,

a/k/a Rasul; CURTIS FARRIS, a/k/a C-Allah; LARRY

BOONE, a/k/a God Supreme; and HERBERT JONES

were responsible for the distribution of significant

quantities of "crack" in the Asbury Park area.

After he received a draft of the PSR, Boone, by letter dated

May 12, 1999, sought disclosure of information relating to

this informant. The government responded by informing

Boone that the informant had stopped cooperating with the

authorities before Boone was released from state prison in

early 1997. In other words, the government conceded that

the representation in the PSR that the confidential

informant had provided information about Boone was

erroneous.

Nonetheless, Boone claims this non-disclosure violated

due process. The argument is, however, somewhat difficult

to follow. If the confidential informant made the statement

about Boone, it certainly would not be exculpatory or

material. On the contrary, if the statement was made it

would have been inculpatory and not subject to Brady

disclosure. In any event, Boone contends that if the PSR

was correct, i.e., had the confidential informant made an

inculpatory statement about him, he (Boone) could have

called the confidential informant as his own witness and

established that the allegations were false. He claims he

"could have impeached the unknown informant and shown

that Boone had been falsely accused of being an early

coconspirator, which created a domino effect, causing Mills,

Farris, and Agent Hilton to either lie or mold their stories

to fit the framework of their target conspiracy." Boone's Br.

at 19-20.

_________________________________________________________________

19. Stewart Mills, who testified at trial, is identified as a second

confidential informant in P 9 of the PSR, and is not the same person

identified in this excerpt.

However, Boone fails to tell us how his new twist on the

"domino theory" would have exculpated him. Moreover,

even if we assume that Boone could have somehow shown

that the confidential informant had falsely implicated him,

he has not even attempted to establish that Mills, Farris

and/or Hilton were even aware of the informant's

statement, or that they perjured themselves and conspired

to "mold their testimony" to conform to it.

Alternatively, Boone suggests that even if the government

was correct that the confidential informant's statement was

wrong, the statement was actually exculpatory because he

could have used the statement to show the jury that he

could not have been a member of the Weston, Farris and

Jones drug conspiracy during the time he was in state

prison. However, assuming arguendo that the statement

would be exculpatory as posited, Boone has not shown that

it was material. The test for materiality is whether the

failure to disclose prejudiced the defendant, i.e., whether

the failure to disclose undermined confidence in the

outcome of the trial. See Smith v. Holtz, 210 F.3d 186, 195-

200 (3d Cir. 2000). The fact that Weston, Farris and Jones

were engaged in drug-trafficking prior to Boone's release

from state prison does not negate Farris' testimony that he

recruited Boone after Boone's release from prison for the

express purpose of delivering cocaine to Agent Hilton on

July 11, 1997. In fact, it corroborates that testimony. Once

Boone agreed to the July 11th transaction, he joined the

conspiracy.

The second Brady violation Boone asserts involves a

statement co-defendant Jones made to a pre-sentence

investigator after pleading guilty. Jones told the investigator

that Weston typically wrapped his drugs in brown paper

bags. According to Boone, he could have used this

information to show that the cocaine Farris received from

Weston and gave to Boone was wrapped in a brown paper

bag, thereby preventing Boone from knowing that cocaine

was inside. However, Boone did not need Jones' statement

to establish this because Farris testified that the cocaine he

delivered to Boone was wrapped in a brown paper bag.

Thus, Jones' statement would have been cumulative and,

consequently, not material. See United States v. Burns, 162

F.3d 840, 851 (5th Cir. 1998)(non-disclosure of information

that supported the defense theory that fraudulent billing

was caused by untimely reimbursements by victim agency

was not material because it was merely cumulative of other

evidence elicited by defense on this point). Moreover, Agent

Hilton testified that by the time Boone delivered the cocaine

to him, it was in a clear plastic bag. Jones' statement does

not contradict that statement because the cocaine was

wrapped in a clear plastic bag that was then placed in the

brown paper bag that was handed to Boone.

4. The District Court Erred in Instructing

the Jury That It Could Consider Evidence That

Boone Attempted to Influence a Witness as

Indicative of Consciousness of Guilt.

Boone argues that the court erred in instructing the jury

that evidence of the threatening letter Farris received

(apparently from Weston, or at his direction) could be

considered as consciousness of guilt. That evidence, which

we have set forth above, was admitted without objection,

and Boone does not challenge its admission here. Boone

objected to the charge at trial, but was overruled. He does

not now argue that the charge did not accurately state the

law. Rather, he argues that the district court's charge was

unfair and inappropriate. First, he argues that it was unfair

because it "lump[ed] together" Boone's and Weston's prison

contacts with Farris. Boone's Br. at 23. He argues this was

unfair because Weston asked Farris to lie, but he (Boone)

simply asked Farris to tell the truth. That is, Boone

maintains that he asked Farris to "truthfully" state that

Boone innocently accompanied Farris to the Collingwood

Auction to ask Mills for a legitimate job, not knowing that

Farris had solicited Boone to deliver cocaine. This argument

again misstates the trial testimony. Farris testified that he

clearly and fully informed Boone that Boone was being

hired to deliver cocaine. According to Farris, Boone did not

accompany Farris to the Collingwood Auction to ask Mills

for a job.

Boone's other arguments about the consciousness of

guilt instruction are equally meritless. Boone claims that

the instruction was unwarranted because "the government

placed their witnesses among his co-defendants in[the jail]

. . . and continuous banter went back and forth to and

from Farris." Boone's Br. at 44. Although Boone's point

here is rather elusive, we assume (as does the government),

that Boone is suggesting that the government attempted to

entrap Boone by creating an opportunity for him to discuss

his drug dealing in front of Farris after Farris agreed to

cooperate. This is apparently based upon an argument that

the government intentionally failed to segregate Farris from

Boone and Weston after Farris began cooperating. Boone

does not offer any proof to support this claim, and we fail

to see the legal basis for an "entrapment" claim even if

Boone had such evidence. Therefore, this argument must

fail.

Finally, Boone claims that Farris, not Boone, initiated

their discussion in the library regarding drafting an

exculpatory letter. However, that argument misses the

point, and is also contradicted by Farris' testimony. The

fact that the defense presented other prison inmates who

claimed that Farris admitted to them that Weston and

Boone were not guilty of the charges only created a jury

question regarding Farris' credibility. The court properly left

that question to the jury.

5. The District Court Erred by Not Charging

That a Single Transaction Does Not Establish

Conspiracy Membership, or That a Member Can

Constructively Terminate His Membership.

Boone argues that the district court improperly denied

his request for an instruction that his involvement in a

single transaction did not prove that he was guilty of

conspiracy. He relies upon our decision in United States v.

Price, 13 F.3d 711, 726-29 (3d Cir. 1994). There, we

reversed a jury instruction that a defendant could be guilty

of conspiring to distribute cocaine by offering to buy

cocaine from a member of the conspiracy, even if the buyer

had no intention of reselling the cocaine. Here, however,

Boone did not buy drugs; he delivered them. Thus, Price

does not help him. In fact, the evidence clearly

demonstrated that Boone was brought into the conspiracy

to deliver Weston's cocaine, collect the purchase price and

remit it to Farris. Boone was only to be paid if he delivered

the cocaine, and Weston and Farris would receive the

money only if Boone delivered the cocaine and collected the

sales price. This is sufficient to prove a conspiracy. See

United States v. DiPasquale, 740 F.2d 1282, 1292 (3d Cir.

1984). Accordingly, the district court properly denied the

requested instruction.

Moreover, the evidence refutes Boone's claim that he was

only involved in one illegal act. Farris selected Boone to

deliver cocaine to "Malik" on July 11th because Boone had

previously delivered cocaine for Farris and because Boone

was friendly with Mills. Farris' subsequent attempt to use

Boone for another delivery to "Malik" on August 1, was

stymied only because Farris could not find Boone.

Meanwhile, Boone was assuring Mills that he (Boone) could

provide Mills with large amounts of cocaine to sell. This

evidence establishes Boone as a member of an ongoing

conspiracy; not a one-time participant.

The district court instructed the jury that, after joining a

conspiracy, a person may terminate his involvement only by

"an affirmative act of termination . . . withdrawal or

disassociation." Boone argued that he was entitled to a

"constructive termination" instruction based on the

argument that he constructively terminated his

membership in the conspiracy by participating in only one

transaction. He has presented no authority for that rather

novel proposition, and we are not aware of any. Rather, we

believe the district court accurately stated the law. Boone

was required to make a prima facie showing of affirmative

acts to defeat or disavow his membership in the conspiracy.

Such acts of disavowal include making a full confession to

authorities or renouncing the conspiracy to the co-

conspirators. United States v. Antar, 53 F.3d 568, 582 (3d

Cir. 1995). The mere cessation of activity is insufficient to

establish withdrawal. Id. at 582. Boone did nothing to

attempt to withdraw. Therefore, the district court did not

err in refusing to give the requested jury instruction.

6. The District Court Erred by Finding

that Boone Did Not Accept Responsibility

for his Crime.

Finally, Boone claims that the district court committed

clear error by finding that he did not "accept responsibility"

for his crimes and declining to reduce his Offense Level

pursuant to U.S.S.G. S 3E1.1. A defendant seeking a

reduction for acceptance of responsibility bears the burden

of establishing by a preponderance of the evidence that he

or she is entitled to the reduction, and we review the

district court's denial of the reduction for clear error. United

States v. Muhammad, 146 F.3d 161, 167 (3d Cir. 1998).

The district court's denial of the reduction is entitled to

"great deference" because "[t]he sentencing judge is in a

unique position to evaluate a defendant's acceptance of

responsibility." U.S.S.G. S 3E1.1, Application Note 5.

Boone's claim of acceptance of responsibility is hard to

take seriously. It is based upon a statement he gave to

investigators after he was arrested that he now argues was

"in all respects a complete confession." Boone's Br. at 28.

After his arrest, Boone waived his Miranda rights and

agreed to give a statement to investigators. In that

statement he claimed that, on July 11, 1997, Farris asked

him to do a favor and "give this guy a package." Boone said

he agreed, and Farris drove Boone to the Collingwood

Auction. Boone admitted that he delivered the package, and

that he skimmed $100 from the money that he received

from "Malik." He denied any knowledge of Farris' cocaine

supplier. Boone did not admit that he committed the

charged offenses, and he did not admit that he knew the

package contained cocaine. Given the evidence here, his

"cooperation" is more a false exculpatory statement than an

acceptance of responsibility. A defendant does not earn the

acceptance of responsibility reduction simply by speaking

to investigators. See United States v. DeLeon-Rodriquez, 70

F.3d 764, 767 (3d Cir. 1995)(district court did not commit

plain error by denying acceptance reduction where

appellant's pre-trial statement to investigators stopped

short of a full confession). Continuing his game of"cat and

mouse," Boone argues that he did not admit that he knew

that the package contained drugs because he was not

specifically asked by the investigators. However, we cannot

help but cast a particularly jaundiced eye on that assertion

because it strikes us as nothing more than a post-hoc

fabrication to buttress his appeal.

Boone would be hard pressed to demonstrate that he

accepted responsibility even with his post-arrest statement.

He seeks the benefit of the portion of U.S.S.G.S 3E1.1

Application Note 2, that provides that "where a defendant

goes to trial to assert and preserve issues that do not relate

to factual guilt (e. g., to make a constitutional challenge to

a statute or a challenge to the applicability of a statute to

his conduct)", a defendant may be entitled to the

acceptance of responsibility reduction. That provision is of

no avail here.

Initially, Boone attempted to rely on the panel opinion in

United States v. Singleton, 144 F.3d 1343 (10th Cir.

1998)(Singleton I), which held that the government was

barred from making promises of leniency to cooperating

witnesses in exchange for their truthful testimony against

a defendant. Thus, he filed a pre-trial motion seeking to

suppress Mills' testimony based on Singleton I . He concedes

that his suppression motion was probably a dead letter by

the time of trial because the panel decision had been

reversed by the Court of Appeals for the Tenth Circuit en

banc. 165 F.3d 1297 (10th Cir.) (Singleton II).20 Nonetheless,

he claims that even though the Court of Appeals for the

Tenth Circuit repudiated Singleton I by the time of his trial,

we had not as yet addressed the issue.21 Thus, he argues

that he continued to fall under the exception explained in

Application Note 2.

However, we are hard pressed to see how Boone could

seriously argue for an acceptance of responsibility

reduction. He opposed the admission of relevant,

inculpatory evidence, and challenged as incredible the

testimony of government witnesses Mills, Farris and Agent

Hilton. We think the law is clear that such actions are

_________________________________________________________________

20. The Supreme Court later denied a petition for certiorari. 527 U.S.

1024 (1999).

21. When this appeal was argued we had decided United States v. Hunte,

193 F.3d 173 (3d Cir. 1999) in which we rejected Singleton I.

inconsistent with the "acceptance of responsibility"

reduction in the Guidelines. United States v. DeLeon-

Rodriquez, 70 F.3d at 767 (acceptance of responsibility

reduction properly denied because appellant challenged the

admission of and accuracy of the government's trial

evidence, and argued for a verdict of not guilty).

VI. CONCLUSION

For all of the above reasons, we will affirm Boone's

sentence of judgment and conviction and will affirm

Weston's conviction. However, we will vacate Weston's

sentence and remand solely for the district court to

determine his Base Offense Level consistent with our

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.