United States v. Wilson ( 1997 )


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  •                               REVISED
    
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT
    
                                ____________
    
                                No. 95-30998
                                ____________
    
    
              UNITED STATES OF AMERICA,
    
    
                                   Plaintiff-Appellee,
    
              versus
    
    
              DON R WILSON, a/k/a BIG DON; ALFRED L BROWN,
              a/k/a GOAT; TROY BELLAMY, a/k/a BOW LEG;
              SEBASTIAN RICHARDSON, a/k/a BAM BAM; REGINALD
              D WILSON; a/k/a REG; DONALD R MILLER, a/k/a
              BIG DADDY; PATRICK D MILLER, a/k/a PATCHY CAT;
              RODERICK ALLEN, a/k/a BABY HULK; ALONZO BATES,
              a/k/a LITTLE MAN; DEXTER D CHAMBERS, a/k/a
              DEXTER HOLMES,
    
    
                                   Defendants-Appellants.
    
    
    
              Appeals from the United States District Court
                  For the Western District of Louisiana
    
                               June 26, 1997
    
    Before REYNALDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit
    Judges.
    
    EMILIO M. GARZA, Circuit Judge:
    
         A federal district court in Louisiana convicted defendants,
    
    members of a Shreveport, Louisiana street gang called the “Bottoms
    
    Boys,” of various federal offenses related to their participation
    
    in a drug trafficking conspiracy and a conspiracy to commit violent
    crimes in aid of racketeering. Defendants appeal their convictions
    
    and sentences, raising a blizzard of legal challenges.              We affirm
    
    in part, vacate in part, remand in part for hearings, and remand in
    
    part for a new trial.
    
                                        I
    
         The Bottoms Boys are a street gang operating in the Ledbetter
    
    Heights   neighborhood    of   Shreveport,      formerly    known    as   “the
    
    Bottoms.”   Until recently, members of the gang conducted a large-
    
    scale, open-air drug market, primarily in the 1100 block of Fannin
    
    Street.   The Bottoms Boys controlled the sale of drugs within this
    
    area; no one could sell within Bottoms Boys territory unless they
    
    were members of the gang or received permission from one of the
    
    leaders of the gang, the so-called “Original Gangsters” or “O.G.s.”
    
    The Bottoms Boys had the reputation as the toughest gang in
    
    Shreveport; anyone who crossed or “dissed” the gang often received
    
    a violent, sometimes deadly, response. Firearms were a fashionable
    
    Bottoms Boys accessory.
    
         Defendant Alfred Brown served as the gang’s principal drug
    
    supplier.    Testimony    established    that    Brown     would   distribute
    
    cocaine that he obtained in Houston to other leaders of the gang,
    
    who would then “front”))that is, distribute without payment up
    
    front))smaller amounts to members, until rocks of crack cocaine
    
    tumbled down to street level.       Sales were highly lucrative; one
    
    former gang member testified that in an average week he made about
    
    $16,000 from drug sales.         In addition, the gang had various
    
                                       -2-
    “enforcers,” also called “reapers,” who enforced the rules of the
    
    gang and protected its territory and drug trade through acts of
    
    violence.
    
         Police    conducted     a   lengthy    investigation   of    the   gang.
    
    Undercover    law     enforcement   officers   and   government   informants
    
    purchased cocaine from gang members on several occasions, many
    
    under the watchful eye of hidden surveillance cameras.              Some of
    
    these drug buys formed the basis for individual drug distribution
    
    counts in the indictment; others served as trial evidence in
    
    support of the drug conspiracy.         The investigation culminated in
    
    the arrest of fourteen gang members. A federal grand jury returned
    
    a thirty-nine count indictment, charging thirteen members with
    
    various     federal     offenses,    including   drug    conspiracy,    drug
    
    distribution and possession with intent to distribute, conspiracy
    
    to commit violent crimes in aid of racketeering, and firearms
    
    charges.
    
         In addition, the indictment charged several defendants with
    
    engaging in or threatening particular acts of violence in violation
    
    of 18 U.S.C. § 1959(a).          Don Wilson, one of the leaders of the
    
    gang, directly threatened Officer Robin Snyder while she was
    
    inventorying property in a vacant house in the 1100 block of Fannin
    
    street.    Wilson told her: “Shine, I am going to fucking kill you.”
    
    Reginald Wilson fatally shot twin brothers Michael and Mitchell
    
    Henderson as they sat in their car in the 1100 block of Fannin
    
    Street.    Patrick Miller shot and wounded Donny Williams, a member
    
                                          -3-
    of a rival gang, after he and his companions “dissed” the Bottoms
    
    Boys by “throwing” rival gang signs.             The government presented
    
    other, uncharged acts of violence        as proof of participation in a
    
    broad conspiracy to commit violent acts on behalf of the gang.
    
         Two defendants pleaded guilty before trial, and the court
    
    declared a mistrial as to another defendant for medical reasons.
    
    Of the remaining eleven defendants, the jury returned guilty
    
    verdicts   against   all   but   one.1     The    district   court   denied
    
    defendants’ motions for judgment of acquittal and new trial. After
    
    sentencing, all ten defendants filed timely notices of appeal.
    
                                      II
                                DRUG CONSPIRACY
    
                                        A
    
         Each defendant argues that the evidence was insufficient to
    
    support his conviction for participation in the drug conspiracy
    
    under 21 U.S.C. §§ 841(a)(1) and 846.       At trial, defendants moved
    
    for acquittal, which the district court denied. We review a denial
    
    of a motion for judgment of acquittal de novo.           United States v.
    
    Restrepo, 
    994 F.2d 173
    , 182 (5th Cir. 1993).            We must draw all
    
    
    
              The jury convicted all defendants of drug conspiracy
    under 21 U.S.C. § 846, and all defendants except Donald Miller of
    at least one substantive drug offense under 21 U.S.C. § 841(a)(1).
    Don Wilson, Sebastian Richardson, Alfred Brown, Reginald Wilson,
    and Patrick Miller were convicted of violent crimes in aid of
    racketeering under 18 U.S.C. § 1959(a). Alfred Brown, Reginald
    Wilson, and Patrick Miller were convicted of use of a firearm
    during a crime of violence or drug trafficking crime under 18
    U.S.C. § 924(c).    Don Wilson was convicted of engaging in a
    continuing criminal enterprise under 21 U.S.C. § 848(a).
    
                                       -4-
    reasonable inferences in favor of the verdict and affirm the
    
    convictions if a reasonable jury could find that the evidence
    
    establishes the guilt of the defendants beyond a reasonable doubt.
    
    Id.   The jury may choose among reasonable inferences from the
    
    evidence, and the evidence need not exclude every hypothesis of
    
    innocence.    United States v. Okoronkwo, 
    46 F.3d 426
    , 430 (5th Cir.
    
    1995), cert. denied, ___ U.S. ___, 
    116 S. Ct. 107
    , 
    133 L. Ed. 2d 60
    
    (1995).
    
          To establish a drug conspiracy under 21 U.S.C. § 846, the
    
    government must prove: (1) the existence of an agreement between
    
    two or more persons to violate federal narcotics laws; (2) that the
    
    defendant    knew   of   the   agreement;    and   (3)   that   the   defendant
    
    voluntarily participated in the agreement. United States v. Gallo,
    
    
    927 F.2d 815
    , 820 (5th Cir. 1991).          No overt acts in furtherance of
    
    the conspiracy need be alleged or proved.                  United States v.
    
    Shabani, 
    513 U.S. 10
    , ___, 
    115 S. Ct. 382
    , 385, 
    130 L. Ed. 2d 225
    
    (1994).     The requisite elements may be proved by circumstantial
    
    evidence,    and    “[c]ircumstances        altogether    inconclusive,     if
    
    separately considered, may, by their number and joint operation
    
    . . . be sufficient to constitute conclusive proof.” United States
    
    v. Roberts, 
    913 F.2d 211
    , 218 (5th Cir. 1990) (citation omitted),
    
    cert. denied, 
    500 U.S. 955
    , 
    111 S. Ct. 2264
    , 
    114 L. Ed. 2d 716
    
    (1991).
    
          Most of the evidence at trial consisted of testimony of former
    
    
                                         -5-
    gang   members       and    officers   in    the    sting    operation.          Several
    
    defendants urge that the evidence is insufficient to support their
    
    convictions because it showed only that they were members of the
    
    Bottoms Boys and that they had, at some point in time, sold drugs
    
    on the 1100 block of Fannin Street.                  Although mere presence and
    
    association with wrongdoers is insufficient to support a conspiracy
    
    conviction,      it    is    a   factor     that    the    jury   may       consider   in
    
    conjunction with other evidence in finding a defendant guilty of
    
    the conspiracy.        United States v.            Lechuga, 
    888 F.2d 1472
    , 1476
    
    (5th Cir. 1989).       Once the government has shown the existence of an
    
    illegal conspiracy, it need produce only “slight evidence” to
    
    connect an individual defendant to the scheme.                     United States v.
    
    Duncan, 
    919 F.2d 981
    , 991 (5th Cir. 1990), cert. denied, 
    500 U.S. 926
    , 
    111 S. Ct. 2036
    , 
    114 L. Ed. 2d 121
     (1991).
    
           Testimony of former gang members, government surveillance
    
    video, and home movies made by the Bottoms Boys (later admitted
    
    into evidence at trial) showed that all defendants were members of
    
    the    gang    and    that    the   gang    was    an     organized,        drug-dealing
    
    enterprise.      All defendants sold drugs on Bottoms Boys turf; the
    
    evidence showed that this was impossible absent membership in the
    
    gang or without permission from one of the original gangsters, or
    
    “O.G.s,” such as Don Wilson. A rational jury could infer voluntary
    
    participation in the conspiracy from these facts.
    
           Next,   the    defendants       argue     that     there   is    a    prejudicial
    
    
                                               -6-
    variance between the indictment, which charges a single conspiracy,
    
    and the proof at trial, which they suggest tends to show the
    
    existence of multiple conspiracies.        The principal considerations
    
    for determining whether the evidence supports a single conspiracy
    
    or multiple conspiracies are (1) the existence of a common goal,
    
    (2) the nature of the scheme, and (3) the overlapping of the
    
    participants in the various dealings.          United States v. Morris, 
    46 F.3d 410
    , 415 (5th Cir.), cert. denied, ___ U.S. ___, 
    115 S. Ct. 2595
    , 
    132 L. Ed. 2d 842
     (1995).      In examining these factors, "[w]e
    
    must affirm the jury's finding that the government proved a single
    
    conspiracy unless the evidence and all reasonable inferences,
    
    examined in the light most favorable to the government, would
    
    preclude reasonable jurors from finding a single conspiracy beyond
    
    a reasonable doubt."      Id. (citation omitted).
    
           The goal of selling cocaine for profit satisfies the common-
    
    goal requirement.      United States v. Maceo, 
    947 F.2d 1191
    , 1196 (5th
    
    Cir. 1991), cert. denied, 
    503 U.S. 949
    , 
    112 S. Ct. 1510
    , 
    117 L. Ed. 2d
     647 (1992).    With respect to the nature of the scheme, we look
    
    at the degree of interdependence of the actions of members of the
    
    conspiracy))that is, whether the activities of one aspect of the
    
    scheme are necessary or advantageous to the success of another
    
    aspect of the scheme.     United States v. DeVarona, 
    872 F.2d 114
    , 118
    
    (5th   Cir.   1989).     With   respect   to   the   required   nexus   among
    
    participants, there is no requirement that every member must
    
    
                                        -7-
    participate in every transaction to find a single conspiracy.
    
    Parties who knowingly participate with core conspirators to achieve
    
    a common goal may be members of a single conspiracy.                    United States
    
    v. Richerson, 
    833 F.2d 1147
    , 1154 (5th                       Cir. 1987).          If the
    
    conspiracy functions through a division of labor, each participant
    
    need not have an awareness of the existence of the other members,
    
    or be privy to the details of each aspect of the conspiracy.                          Id.
    
           Don Wilson (whose brief was adopted by all other defendants)
    
    argues that the evidence fails to satisfy the second and third
    
    requirements for a single conspiracy.                    Wilson argues that the
    
    evidence showed       that    sellers    on   Fannin      Street       sold   drugs    in
    
    competition    with     one   another,    not   in     concert;        therefore,     he
    
    asserts, there was no showing of interdependence between the
    
    various aspects of the alleged conspiracy. Moreover, Wilson argues
    
    that, although the evidence showed that he, Brown, and Richardson
    
    each “employed” other gang members to sell drugs, the government
    
    did not demonstrate any overlap among workers in these smaller
    
    conspiracies.
    
           The government, however, cites to sufficient evidence in the
    
    record   to   support     a   jury    finding   of       a    single,     overarching
    
    conspiracy.     The fact that individual dealers sold in competition
    
    with   one    another    does   not     preclude     a       finding    of    a   single
    
    conspiracy.     United States v. Ross, 
    58 F.3d 154
    , 158 (5th Cir.),
    
    cert. denied, ___ U.S. ___, 
    116 S. Ct. 404
    , 
    133 L. Ed. 2d 323
    
    
                                            -8-
    (1995).    The    jury   could    infer       from   the   evidence    that   the
    
    competition was not cutthroat rivalry, but friendly competition
    
    among those pursuing a common goal as Bottoms Boys gang members.
    
    Moreover, the organizational structure of the gang supports a
    
    finding of a single conspiracy.              Testimony established that the
    
    gang’s structure included organizers, suppliers, middlemen, street
    
    sellers,   and    “reapers”      who    protected      the    gang’s    “turf.”
    
    Apparently, Brown was the main drug supplier for the “O.G.s” (Don
    
    Wilson, Reginald Wilson, Sebastian Richardson, and Donald Miller),
    
    who then fronted drugs to other gang members, who sold directly on
    
    the street.   In fact, the government asserts that the testimony at
    
    trial shows that every defendant received some, if not all, of his
    
    cocaine from Brown, either directly or indirectly.                     A single
    
    conspiracy may exist between two or more individuals selling in
    
    competition with one another who share a common supplier, Ross, 58
    
    F.3d at 158, or who knowingly participate with the same core
    
    conspirators in pursuit of a common goal.             Richerson, 833 F.2d at
    
    1154.   We have held that a “single conspiracy exists where a ‘key
    
    man’ is involved in and directs illegal activities, while various
    
    combinations of other participants exert individual efforts toward
    
    a common goal.”    Morris, 46 F.3d at 416.
    
         The jury’s determination that a single drug conspiracy existed
    
    in this case does not involve particularly complicated evidence or
    
    facts that were likely to confuse triers of fact.                 Much of the
    
    
                                           -9-
    conspiracy evidence was direct testimony about drug sales and the
    
    organization of the conspiracy.            After review of the evidence in
    
    the record, we conclude that a reasonable jury could find, beyond
    
    a reasonable doubt, the existence of a single drug conspiracy
    
    involving each defendant.          Accordingly, we find no error in the
    
    district court’s denial of the motion to acquit.
    
                                           B
    
          The   defendants    assert    that    the   district     court    erred   in
    
    determining the quantity of drugs attributable to them for the
    
    purposes     of    sentencing.       In     sentencing     a    defendant       for
    
    participation in a drug conspiracy, the court must make findings
    
    with respect to (1) when the defendant joined the conspiracy, (2)
    
    what drug quantities were within the scope of the agreement, and
    
    (3) what quantities the defendant could reasonably foresee being
    
    sold by the conspiracy.        United States v. Carreon, 
    11 F.3d 1225
    ,
    
    1236 (5th Cir. 1994). Relevant conduct under Sentencing Guidelines
    
    § 1B1.3(a)(1)(B) includes all reasonably foreseeable acts of others
    
    in   furtherance    of   the   conspiracy.        United   States      Sentencing
    
    Commission, Guidelines Manual, § 1B1.3(a)(1)(B), comment. (n.1)
    
    (1995).     However, the reasonable foreseeability of all drug sales
    
    does not automatically follow from membership in the conspiracy.
    
    United States v. Puig-Infante, 
    19 F.3d 929
    , 942 (5th Cir.), cert.
    
    denied, 
    513 U.S. 864
    , 
    115 S. Ct. 180
    , 
    130 L. Ed. 2d 115
     (1994).                 We
    
    review the district court’s determination of relevant conduct
    
    
                                         -10-
    during sentencing for clear error.      United States v. Rivera, 
    898 F.2d 442
    , 445 (5th Cir. 1990).
    
         Several defendants argue that the district court failed to
    
    make the required specific findings with respect to time frame of
    
    membership, overall quantity, and reasonable foreseeability of drug
    
    sales.   However,   the   district   court   determined   the   dates   of
    
    membership in the conspiracy for each defendant and adjusted the
    
    quantities attributable to him accordingly.         The court did not
    
    accept speculative testimony or extrapolate to compute the quantity
    
    of drugs sold.    It used only two sources to calculate a minimum
    
    drug quantity for relevant conduct purposes: documented evidence of
    
    actual drug transactions totaling 25.45 grams of crack cocaine and
    
    .78 grams of powder cocaine, and sales admitted by co-conspirator
    
    Rashaun Kimble totaling 266 grams of crack cocaine and 112 grams of
    
    powder cocaine.   Finally, in making its reasonable foreseeability
    
    determination, the court specifically found that each defendant was
    
    aware of the acts of all.     We find that these explicit findings
    
    satisfy the court’s duty under Carreon.
    
         The defendants also argue that the district court erred in
    
    including the amounts sold by Rashaun Kimble in their quantity
    
    determinations, because these sales had no connection to them and
    
    were not reasonably foreseeable.     However, Kimble was an admitted
    
    member of the conspiracy.    Kimble testified that he was a Bottoms
    
    Boy, that he sold drugs in the 1100 block of Fannin, and that he
    
    
                                     -11-
    received his cocaine from Brown. The evidence at trial showed that
    
    defendants all sold drugs in the open on the same block, and that
    
    it was impossible to sell drugs at that location without the gang’s
    
    permission.   The nature of the open-air drug market on Fannin
    
    Street supports the district court’s finding that the full volume
    
    of sales, including Kimble’s, was foreseeable, if not actually
    
    witnessed, by the defendants.
    
                                    III
                   VIOLENT CRIMES IN AID OF RACKETEERING
    
         Reginald Wilson, Don Wilson, and Patrick Miller challenge the
    
    sufficiency of the evidence used to convict them of committing
    
    certain violent crimes in aid of racketeering in violation of 18
    
    U.S.C. § 1959(a) (“VICAR”). The three, along with Alfred Brown and
    
    Sebastian   Richardson,   also   challenge   the   sufficiency   of   the
    
    evidence to support their convictions for participation in a VICAR
    
    conspiracy.   Section 1959(a) provides in pertinent part:
    
         Whoever, . . . for the purpose of . . . maintaining or
         increasing position in an enterprise engaged in
         racketeering activity, murders, . . . maims, assaults
         with a dangerous weapon, commits assault resulting in
         serious bodily injury upon, or threatens to commit a
         crime of violence in violation of the laws of any State
         or the United States, or attempts or conspires so to do,
         shall be punished))
              (1) for murder, by death or life imprisonment,
              or a fine under this title, or both; . . .
              (3) for assault with a dangerous weapon or
              assault resulting in serious bodily injury, by
              imprisonment for not more than twenty years or
              a fine under this title, or both;
              (4) for threatening to commit a crime of
              violence, by imprisonment for not more than
              five years or a fine under this title, or
              both;
    
                                     -12-
                (5) for attempting or conspiring to commit
                murder or kidnapping, by imprisonment for not
                more than ten years or a fine under this
                title, or both; and
                (6) for attempting or conspiring to commit a
                crime involving maiming, assault with a
                dangerous weapon, or assault resulting in
                serious bodily injury, by imprisonment for not
                more than three years or a fine under this
                title, or both.
    
    According to the definitions section of 18 U.S.C. § 1961(1), drug
    
    trafficking constitutes “racketeering activity” for the purposes of
    
    VICAR under 18 U.S.C. § 1959(b)(1).
    
                                         A
    
         The jury convicted Don Wilson of threatening to kill Officer
    
    Robin Snyder (count six) and convicted Patrick Miller of shooting
    
    Donny Williams (count fourteen).          In reviewing a challenge to the
    
    sufficiency of the evidence, the court of appeals asks “whether,
    
    after viewing the evidence in the light most favorable to the
    
    prosecution, any rational trier of fact could have found the
    
    essential   elements   of   the   crime    beyond   a   reasonable   doubt.”
    
    Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789, 61 L.
    
    Ed. 2d 560 (1979); United States v. Krenning, 
    93 F.3d 1257
    , 1262
    
    (5th Cir. 1996).       To prove a substantive VICAR offense, the
    
    government must show that the defendant committed the violent act
    
    for the purpose of maintaining or increasing his position in an
    
    association or enterprise engaged in racketeering activity. United
    
    States v. Fiel, 
    35 F.3d 997
    , 1003 (4th Cir. 1994), cert. denied,
    
    ___ U.S. ___, 
    115 S. Ct. 1160
    , 
    130 L. Ed. 2d 1116
     (1995).              Self-
    
                                       -13-
    promotion need not be the defendant’s sole or primary concern;
    
    rather, Congress intended to proscribe violent acts committed “‘as
    
    an integral aspect of membership’ in such enterprises.”             United
    
    States v. Concepcion, 
    983 F.2d 369
    , 381 (2d Cir. 1992) (citation
    
    omitted), cert. denied, 
    510 U.S. 856
    , 
    114 S. Ct. 163
    , 
    126 L. Ed. 2d 124
     (1993).
    
          Don Wilson and Patrick Miller do not deny that they committed
    
    the   acts   alleged.   However,    they   argue   that   the   government
    
    presented no evidence showing that they committed the charged
    
    offenses in order to maintain or increase their positions within
    
    the gang.     Former gang members Howard Richardson, James Bledsoe,
    
    and Rashaun Kimble and witness Donny Watts testified at trial that
    
    Wilson often carried guns, and Richardson testified that Wilson
    
    acted as an enforcer or “reaper” who “put[] in work” upholding the
    
    Bottoms Boys’ territory and protecting the drug trade.           “Reapers”
    
    received their ominous title based on their willingness to commit
    
    violent acts on behalf of the gang; Richardson described a “reaper”
    
    as “the person that when your number is up is called for your soul
    
    that comes to get you.”       From this evidence, the jury could
    
    reasonably have inferred that Wilson was acting in his capacity as
    
    a “reaper” when he threatened Officer Snyder and that such threats
    
    (or worse) were expected of him based on his position within the
    
    gang.
    
          Similarly, the government presented evidence that various
    
    
                                       -14-
    individuals, including the victim, were “throwing” rival “gang
    
    signs” just before Patrick Miller shot Donny Williams.                          Gangs
    
    generally     identify    themselves     with     hand       gestures.         Howard
    
    Richardson testified that when a member of the Bottoms Boys flashed
    
    his gang sign in an upward direction to a member of another gang,
    
    the second individual would flash his own gang sign “up” followed
    
    by the Bottoms Boys’ sign “down,” thus signaling that he was “down
    
    with”   the    Bottoms    Boys))that     is,    that     he     respected       them.
    
    Richardson testified that violation of gang sign protocol))for
    
    example, by failing to give a “down” acknowledgment))constituted
    
    “dissing,” or disrespect to the gang, and members were expected to
    
    retaliate with violence in the event of such an affront.                  Otherwise
    
    they were “punked out” and considered “bitched”))that is, they lost
    
    the respect of fellow gang members.
    
         Although      the   VICAR   statute       does    not     criminalize       mere
    
    retaliation for “dissing” an individual or a social organization,
    
    the statute does criminalize violent acts committed as an integral
    
    aspect of membership in a racketeering enterprise.                       Id.     Drug
    
    trafficking is a dangerous business; Howard Richardson testified
    
    that the Bottoms Boys carried weapons for the express purpose of
    
    protecting themselves and their drugs from other gangs.                          Gang
    
    members protected the “turf” of the Bottoms Boys’ drug trafficking
    
    operation     by   promoting   their    image   as    the     “toughest    gang    in
    
    Shreveport” and a force “not to be messed with.”                    Under these
    
    
    
                                           -15-
    facts, a reasonable jury could find that violent retaliation for
    
    acts of disrespect promoted the goals of illegal enterprise.
    
         Williams testified at trial that he was dissing the Bottoms
    
    Boys that night, refusing to flash the “down” sign and calling the
    
    gang the “Booty Boys.” A jury could reasonably infer that, because
    
    of Miller’s membership in the gang, he was required to respond
    
    violently to Williams’s poor signing etiquette.        See United States
    
    v. Tipton, 
    90 F.3d 861
    , 891 (4th Cir. 1996) (finding purpose
    
    element for VICAR offense satisfied by enterprise with policy of
    
    treating affronts to members as affronts to all and expecting
    
    violent retaliations by enterprise’s members), petition for cert.
    
    filed, ___ U.S.L.W. ___ (Jan. 27, 1997) (No. 96-7692); Fiel, 35
    
    F.3d at 1004 (finding that rational jury could conclude that
    
    defendants believed that participation in violent war against rival
    
    gang was expected of them by reason of their membership in gang);
    
    United States v. Boyd, 
    792 F. Supp. 1083
    , 1102 (N.D. Ill. 1992)
    
    (finding   that   purpose   element   is   satisfied   where   government
    
    presented evidence that committing violent acts was one way to move
    
    up within the gang and that aversion to such acts would “invite
    
    trouble” from other gang members).          Therefore we hold that a
    
    rational trier of fact could have found the essential elements of
    
    a VICAR offense beyond a reasonable doubt, and we uphold the
    
    convictions of Don Wilson and Patrick Miller on this count.
    
         The jury also convicted Reginald Wilson of committing a VICAR
    
    
                                     -16-
    offense in the fatal shooting of Michael and Mitchell Henderson.
    
    For the same reasons articulated in this section, we find that the
    
    evidence was sufficient to convict Reginald Wilson for the VICAR
    
    count.     However, as explained in Section VII.A infra, we vacate
    
    Wilson’s conviction on this count for an independent reason, and we
    
    remand for a new trial.
    
                                            B
    
         We also reject all five defendants’ challenges to their VICAR
    
    conspiracy convictions under Count One of the indictment.2                         In
    
    addition    to   the    substantive     VICAR      offenses    charged     in     the
    
    indictment, the government presented extensive testimony concerning
    
    violent acts committed by members of the Bottoms Boys.                         Howard
    
    Richardson    testified       to   instances   where      customers     were    shot,
    
    stabbed, “snatched out of cars and beat,” and “throwed to the
    
    dog”))a    punishment    in    which   gang    members     toss   the    offending
    
    individual over a fence into a yard with guard dogs.                  In addition,
    
    Richardson testified that rival gang members who came into the
    
    Bottoms without consent were beaten or shot.               If anyone attacked a
    
    Bottoms Boy, gang members would organize a drive-by shooting in
    
    retaliation.
    
         The    evidence    demonstrates        that   each    defendant     knew    that
    
    
    
              The evidence is also sufficient to support Reginald
    Wilson’s conviction for participation in the general VICAR
    conspiracy under count one, even though we vacate and remand his
    conviction for the substantive VICAR offense of count nine. See
    Section VII.A, infra.
    
                                           -17-
    commission of violent acts was expected of him by virtue of his
    
    membership    in   the    gang   and   that   each   willingly    joined   the
    
    enterprise, thereby agreeing to commit those violent acts.                 For
    
    example, testimony established that Bottoms Boys were expected to
    
    retaliate    against     those   who   “dissed”   the   gang;    that   members
    
    regularly carried guns to protect the drug trade and that they
    
    often used those guns when drug deals went awry; and that Reginald
    
    Wilson and Sebastian Richardson, like Don Wilson, were “reapers”
    
    who regularly committed violent acts on behalf of the gang.                  In
    
    addition, testimony revealed that Brown, as the main supplier of
    
    the gang, paid Don Wilson to protect his person and his drugs, thus
    
    entering into an express agreement to commit violent crimes where
    
    necessary.    We find that the evidence is sufficient for a rational
    
    jury to find that all the defendants conspired commit violent acts
    
    as an integral part of membership in the gang.
    
                                      IV
                        SUFFICIENCY OF THE INDICTMENT
    
         Richardson argues that count one of the indictment is fatally
    
    defective because it charges defendants with a crime that does not
    
    exist. Don Wilson, Brown, Reginald Wilson, and Patrick Miller join
    
    in this challenge by incorporation of Richardson’s brief.                 Count
    
    one charges defendants with participation in a VICAR conspiracy
    
    under 18 U.S.C. § 1959(a)(5) and (6) by alleging that defendants
    
    “did knowingly combine, conspire, and confederate to commit murder,
    
    attempted murder, and assaults with dangerous weapons . . . in
    
                                           -18-
    violation of the laws of the State of Louisiana.”                    (emphasis
    
    added).      Defendants argue that “conspiracy to commit attempted
    
    murder” does not constitute a crime and thus the indictment is
    
    legally insufficient to support their convictions under count one.
    
          We agree that “conspiracy to commit attempted murder” is not
    
    a cognizable offense under 19 U.S.C. § 1959, both as a matter of
    
    statutory construction and common sense. United States v. Meacham,
    
    
    626 F.2d 503
    ,   507-09    &   n.7    (5th    Cir.   1980)   (holding   that
    
    “conspiracy to attempt” is not offense under drug conspiracy
    
    statutes and noting that “it would be the height of absurdity to
    
    conspire     to   commit      an   attempt,      an   inchoate   offense,   and
    
    simultaneously conspire to fail at the effort”), cert. denied, 
    459 U.S. 1040
    , 
    103 S. Ct. 455
    , 
    74 L. Ed. 2d 608
     (1982).              However, we do
    
    not find that this drafting error warrants automatic reversal.
    
    Unlike in Meacham, the indictment here charged defendants with
    
    conspiracy to commit murder and assault with a deadly weapon, in
    
    addition to attempted murder. Although one of the objects of the
    
    conspiracy in count one fails to allege a cognizable offense, the
    
    other two objects are clearly sufficient under section 1959(a).
    
    Defendants do not allege that the indictment did not adequately
    
    apprise them of the charges against them or prejudice their defense
    
    in any way due to the inclusion of “attempted murder” as one of
    
    three possible objects.            Our only concern is whether the jury
    
    convicted defendants of VICAR conspiracy based on a permissible
    
    
                                             -19-
    ground.
    
         In Yates v. United States, the Supreme Court stated that, in
    
    the criminal context, “a verdict [must be] set aside where [it] is
    
    supportable on one ground, but not on another, and it is impossible
    
    to tell which ground the jury selected.”    
    354 U.S. 298
    , 312, 77 S.
    
    Ct. 1064, 1073, 
    1 L. Ed. 2d 1356
     (1957), overruled on other
    
    grounds, Burks v. United States, 
    437 U.S. 1
    , 
    98 S. Ct. 2141
    , 57 L.
    
    Ed. 2d 1 (1978).      The Court recently limited the Yates rule,
    
    distinguishing between legally and factually insufficient grounds
    
    for conviction.    A general verdict may stand where one of several
    
    objects of the conspiracy lacked adequate evidentiary support if
    
    the evidence was sufficient to support the other objects.   Griffin
    
    v. United States, 
    502 U.S. 46
    , 60, 
    112 S. Ct. 466
    , 474, 
    116 L. Ed. 2d
     371 (1991).     However, where the verdict may have rested on a
    
    ground that, although supported by the evidence, was legally
    
    inadequate, the Yates rule still applies and the general verdict
    
    must be reversed.    Id. at 60, 112 S. Ct. at 474.
    
         We find that the indictment for conspiracy to attempt in the
    
    instant case was both legally defective and factually unsupported
    
    by the evidence.    Because the government offered no proof at trial
    
    of a conspiracy to attempt, we find that there is no possibility
    
    that the jury convicted the defendants on the improper charge and
    
    that the plaintiffs were therefore not prejudiced by the legal
    
    error.    To the extent that the jury found the defendants guilty of
    
                                     -20-
    the conspiracy count, they must have based their conviction on the
    
    trial evidence of conspiracy to commit murder and assault with a
    
    deadly weapon.
    
         We hold that Griffin, not Yates, applies where one of several
    
    charged objects of a conspiracy is factually insufficient, even if
    
    that object is also legally insufficient.      Where, as in this case,
    
    no evidence was ever presented to support the legally flawed
    
    charge, there is little danger that the jury convicted on that
    
    impermissible ground.     See Griffin, 502 U.S. at 58, 112 S. Ct. at
    
    474 (noting that jurors are well equipped to analyze evidence and
    
    choose between factually sufficient and insufficient grounds).
    
    Thus, we reject the defendants’ assertion that count one of the
    
    indictment is fatally defective.
    
                                      V
                               BRADY CHALLENGES
    
         Next,   defendants    raise    two   challenges   concerning   the
    
    government's execution of its duty to disclose exculpatory evidence
    
    under Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    , 1196-97,
    
    
    10 L. Ed. 2d 215
     (1963).
    
                                        A
    
         Reginald Wilson contends that the government’s failure to
    
    produce handwritten notes made by investigators during witness
    
    interviews violated his rights under the Jencks Act, 18 U.S.C. §
    
    3500, and the Supreme Court’s holding in Brady.        Wilson requested
    
    production of the notes before trial, and all other defendants
    
                                       -21-
    adopt this argument by incorporation. The government affirmatively
    
    stated that the notes existed, and the court ordered that the
    
    government produce them for in camera review.3        Later, during
    
    trial, defense counsel again requested that the court review the
    
    notes in camera to determine their Brady significance, and the
    
    court replied that it would.   However, the record does not reflect
    
    whether, or to what extent, the district court actually reviewed
    
    the notes in question or whether they contain Brady material.   The
    
    government did not brief this issue, nor did it adequately respond
    
    to direct questioning from this panel during oral argument.
    
         Failure to disclose exculpatory evidence by the government is
    
    reversible only if the evidence is material in the sense that its
    
    suppression undermines confidence in the outcome of the trial.
    
    United States v. Bagley, 
    473 U.S. 667
    , 678, 
    105 S. Ct. 3375
    , 3381,
    
    
    87 L. Ed. 2d 481
     (1985).   The Supreme court has held that favorable
    
    evidence is material, even when not requested by the defendant, “if
    
    there is a reasonable probability that, had the evidence been
    
    disclosed to the defense, the result of the proceeding would have
    
    been different.”   Bagley, 473 U.S. at 682, 105 S. Ct. at 3383
    
    (opinion of Blackmun, J.);   id. at 685, 105 S. Ct. at 3385 (White,
    
    
    
              The district court did, in fact, review one set of notes
    taken during an interview with Rashaun Kimble, determined that they
    contained no Brady material, and filed them in the record under
    seal. However, the government admitted that additional notes taken
    during other interviews existed, and the court ordered that these
    additional notes be produced for in camera review.
    
                                    -22-
    J.,   concurring   in   part   and    concurring   in   judgment).      The
    
    suppression of such material evidence only amounts
    
    to a Brady violation when, in the absence of such evidence, the
    
    verdict is unworthy of the court’s confidence.          Kyles v. Whitley,
    
    
    514 U.S. 419
    , ___, 
    115 S. Ct. 1555
    , 1566, 
    131 L. Ed. 2d 490
     (1995);
    
    Bagley, 473 U.S. at 678, 105 S. Ct. at 3381.
    
          Because defendants do not have the notes in question, they are
    
    unable to claim a reasonable probability that information in the
    
    notes would undermine confidence in their verdicts, or that the
    
    notes contain any Brady material at all.           Although we will not
    
    ordinarily remand for in camera review based on purely speculative
    
    allegations of the existence of Brady material, see United States
    
    v. Dinitz, 
    538 F.2d 1214
    , 1224 (5th Cir. 1976), cert. denied, 
    429 U.S. 1104
    , 
    97 S. Ct. 1133
    , 
    51 L. Ed. 2d 556
     (1977), the district
    
    court actually granted Wilson’s request for in camera review and
    
    ordered production of the notes; we simply do not know the district
    
    court’s conclusions or whether the government even complied with
    
    the court’s request for the notes.
    
          We therefore remand this matter so that the district court may
    
    supplement the record with its findings and the notes, under seal
    
    if necessary, if it has already reviewed their contents.             If the
    
    court has not yet reviewed the notes, then it should do so within
    
    the next thirty days, in camera, nunc pro tunc, to determine
    
    whether the notes contain any Brady material.           United States v.
    
    
                                         -23-
    Thomas, 
    12 F.3d 1350
    , 1365 (5th Cir.), cert. denied, 
    511 U.S. 1095
    ,
    
    
    114 S. Ct. 1861
    , 
    128 L. Ed. 2d 483
     (1994), and cert. denied, 
    511 U.S. 1114
    , 
    114 S. Ct. 2119
    , 
    128 L. Ed. 2d 676
     (1994).                If the
    
    district court concludes that the notes contain no Brady material
    
    or that their suppression does not undermine confidence in the
    
    verdicts, it should supplement the record with the notes and make
    
    sufficiently detailed findings to enable us to review its decision.
    
    Id.; United States v. Welch, 
    810 F.2d 485
    , 491 (5th Cir.), cert.
    
    denied, 
    484 U.S. 955
    , 
    108 S. Ct. 350
    , 
    98 L. Ed. 2d 376
     (1987).            If
    
    defendants seek to challenge the district court’s determination,
    
    they need not file a new appeal; they may instead file certified
    
    copies   of   the   district   court’s    findings   and,    if   necessary,
    
    supplementary briefs or other materials for review by this panel.
    
    Thomas, 12 F.3d at 1365; Welch, 810 F.2d at 491.            However, if the
    
    court finds that the notes contain Brady material that undermines
    
    confidence in any defendant’s verdict, the court should vacate only
    
    the convictions that the notes call into doubt and grant a new
    
    trial for each.     Thomas, 12 F.3d at 1365; Welch, 810 F.2d at 491.
    
                                        B
    
         Sebastian Richardson argues that the government violated its
    
    Brady duty by failing to disclose that Richardson’s brother,
    
    prosecution witness Howard Richardson, was taking the antipsychotic
    
    drugs Haldol, Lithium, and Elavil at the time of his testimony.
    
    Richardson’s challenge, like Wilson’s, has been adopted by all
    
    
                                       -24-
    other defendants. Richardson asserts that failure to disclose this
    
    evidence   severely   hampered   the   defendants’   ability   to   attack
    
    Howard’s competence to testify.
    
         Impeachment evidence, like exculpatory evidence, is subject to
    
    disclosure under Brady.     Bagley, 473 U.S. at 676, 105 S. Ct. at
    
    3380.   However, to prevail under Brady, Richardson must first show
    
    that the prosecution violated a duty of disclosure. East v. Scott,
    
    
    55 F.3d 996
    , 1002 (5th Cir. 1995).        The government asserts that it
    
    was unaware that Howard Richardson had been prescribed anti-
    
    psychotic medication until after trial, and Sebastian Richardson
    
    does not suggest otherwise.      Although Richardson suggests that the
    
    government should be deemed to have had constructive knowledge
    
    based on a broad duty to investigate, a prosecutor has no duty
    
    under Brady to investigate the mental state of its witnesses in
    
    order to uncover impeachment evidence for the defense.          East, 55
    
    F.3d at 1003-04.
    
                                     VI
                       ADMISSION OF EVIDENCE AT TRIAL
    
         Defendants argue that the district court erred in admitting
    
    into evidence a videotape made by gang members, as well as in
    
    admitting statements made by Sebastian Richardson to an undercover
    
    police officer.    We review a district court’s evidentiary rulings
    
    for abuse of discretion.    United States v. Vasquez, 
    953 F.2d 176
    ,
    
    182 (5th Cir.), cert. denied, 
    504 U.S. 946
    , 
    112 S. Ct. 2288
    , 119 L.
    
    Ed. 2d 212 (1992).
    
                                       -25-
                                             A
    
           During   the     investigation,       the   government     confiscated    a
    
    videotape made by one of the gang members showing other gang
    
    members,     including    many    of   the    defendants,    drinking,    smoking
    
    marijuana, throwing gang signs, going on a “gangsta ride,” firing
    
    weapons, threatening the police, and discussing drug transactions.
    
    The prosecution showed the so-called “Ford Park video” to the jury
    
    over the objections of Bellamy, Brown, and Reginald Wilson.                     On
    
    appeal, the defendants argue that the district court erred in
    
    admitting the tape under Fed. R. Evid. 403 because its extreme
    
    prejudice outweighed its probative value.             In addition, they argue
    
    that statements made on the tape by gang members constituted
    
    inadmissible hearsay under Fed. R. Evid. 801.
    
           The video, made by gang members for gang members, was highly
    
    probative of association for purposes of both the drug and VICAR
    
    conspiracies, and it corroborated the testimony of many of the
    
    government’s witnesses.           We cannot say that the district court
    
    abused its discretion in holding that the tape’s prejudicial effect
    
    did    not   outweigh    its     probative    value   as    to   any   defendant.
    
    Moreover, statements in the video made by gang members concerning
    
    drug   transactions      and   guns    were    made   in   furtherance    of   the
    
    conspiracy and thus fall under the hearsay exception in Rule
    
    801(d)(2)(E).
    
                                             B
    
           During the federal investigation, Special Agent Calvin Shivers
    
                                           -26-
    went undercover, telling Sebastian Richardson that he was a movie
    
    producer who needed ideas for a script about gangs.                   In response,
    
    Richardson thoroughly described the Bottoms Boys organization,
    
    which Shivers recorded on tape.           Richardson even drew a diagram of
    
    how the drug distribution network was organized.                    In the process,
    
    Richardson named Alfred Brown as the “man with the sac [sic]” at
    
    the top of the organizational chart.              The government enlarged this
    
    exhibit to poster size for introduction at trial and, over the
    
    objection of defense counsel, closed its case with Agent Shivers’s
    
    testimony    detailing     Richardson’s         description    of    how    the   gang
    
    operates.       The   court      sustained       defendants’    objection         that
    
    Richardson's statements did not fall within the co-conspirator
    
    exception of Fed. R. Evid. 801(d)(2)(E) because they were not made
    
    in furtherance of the conspiracy. The court therefore admitted the
    
    statements for use against Richardson only as admissions of a
    
    party-opponent    under     Rule    801(d)(2)(A)        and    gave     a    limiting
    
    instruction to that effect.          However, the government repeatedly
    
    referred to the chart in closing as evidence against all defendants
    
    and against Brown specifically, referring to him as the “man with
    
    the sack.”
    
           Defendants argue that the introduction of this testimony and
    
    exhibit violated their rights under the Confrontation Clause of the
    
    Sixth Amendment. Richardson’s statements to Agent Shivers were not
    
    made    in   furtherance    of     the     conspiracy    and    were        therefore
    
    inadmissible against any defendant other than Richardson.                            A
    
                                             -27-
    district court violates a defendant’s Sixth Amendment right of
    
    confrontation when, in a joint trial, it admits a nontestifying
    
    defendant’s extrajudicial statement implicating another defendant
    
    in the crime.   Bruton v. United States, 
    391 U.S. 123
    , 126, 88 S.
    
    Ct. 1620, 1622, 
    20 L. Ed. 2d 476
     (1968).         However, Bruton does not
    
    come into play “unless a co-defendant’s statement directly alludes
    
    to the complaining defendant,” even if it is apparent that “the
    
    defendant was implicated by some indirect reference.”                 United
    
    States v. Cartwright, 
    6 F.3d 294
    , 300 (5th Cir. 1993), cert.
    
    denied, 
    513 U.S. 10
    60, 
    115 S. Ct. 671
    , 
    130 L. Ed. 2d 604
     (1994).
    
    Richardson mentioned only Alfred Brown by name, and did not refer
    
    to any other defendant specifically, thus the Bruton/Confrontation
    
    Clause arguments of all other defendants fail.
    
         However, as to Brown, Bruton is plainly implicated.              Brown
    
    could not cross-examine Richardson to determine the veracity of the
    
    statements   made   or   to   reveal   whether    Richardson   was   merely
    
    “puffing” to impress Agent Shivers.       A limiting instruction by the
    
    court in such a case is insufficient to remedy the constitutional
    
    violation.   Cruz v. New York, 
    481 U.S. 186
    , 193-94, 
    107 S. Ct. 1714
    , 1719, 
    95 L. Ed. 2d 162
     (1987) (“[W]here a nontestifying
    
    codefendant’s   confession     incriminating     the   defendant     is   not
    
    directly admissible against the defendant, the Confrontation Clause
    
    bars its admission at their joint trial, even if the jury is
    
    instructed not to consider it against the defendant, and even if
    
    
                                       -28-
    the   defendant’s      own       confession     is   admitted      against   him.”)
    
    (citations omitted); United States v. Jobe, 
    101 F.3d 1046
    , 1067
    
    (5th Cir. 1996) (holding that limiting instruction cannot rectify
    
    actual Bruton error, but finding no such error).
    
          We   therefore    find      that   admission     of   this    uncorroborated
    
    evidence,    even   with     a    limiting    instruction,      was   an   abuse   of
    
    discretion.    Furthermore, the district court abused its discretion
    
    in overruling defendants’ objection to the government’s misuse of
    
    the sting evidence during its closing.               The prosecutor’s arguments
    
    at closing were patently impermissible given the limited purposes
    
    for which the court admitted the evidence.                  See United States v.
    
    Flores-Chapa, 
    48 F.3d 156
    , 159-61 (5th Cir. 1995) (overturning
    
    conviction where prosecutor had repeated hearsay testimony at
    
    closing argument, despite two previously sustained objections to
    
    testimony at trial). The prosecutor’s use of such evidence against
    
    Brown violated his constitutional rights under the Confrontation
    
    Clause.
    
          Upon a showing of the denial of a constitutional right, we
    
    must reverse a conviction unless the error is harmless beyond a
    
    reasonable doubt.      Chapman v. California, 
    386 U.S. 18
    , 24-25, 87 S.
    
    Ct. 824, 827-28, 
    17 L. Ed. 2d 705
     (1967).                     A Bruton error is
    
    harmless where the weight of other evidence clearly implicates the
    
    defendant.    Jobe, 101 F.3d at 1067; United States v. Kelly, 
    973 F.2d 1145
    , 1150 (5th Cir. 1992).                The record is filled with in-
    
    
                                             -29-
    court testimony of Brown’s involvement in the conspiracy as an
    
    "O.G." and as its major supplier.   Both Howard Richardson and John
    
    Palmer testified that Brown made trips to Houston to buy cocaine
    
    that he would then distribute among gang members.   Other witnesses
    
    link Brown as a direct or indirect supplier to all of the other
    
    defendants.   In light of the abundant independent evidence of
    
    guilt, Richardson’s chart and description were merely cumulative.
    
    Therefore, we find that the Bruton error was harmless beyond a
    
    reasonable doubt.
    
                                   VII
        CHALLENGES BASED ON THE SHOOTINGS OF THE HENDERSON TWINS
    
                                    A
    
         Reginald Wilson contends that the district court erred in
    
    denying his motion to sever his trial from that of his co-
    
    conspirators, because his co-defendants were the only witnesses who
    
    could verify his VICAR defense, that he killed the Henderson twins
    
    in self-defense.    Wilson confessed to gunning down the twins as
    
    they sat in their car but claims that he fired only after seeing
    
    one of the twins reach for a weapon.        Police later found a
    
    semiautomatic pistol in the twins’ car.    Although counsel laid a
    
    foundation for the self-defense theory in opening argument, Wilson
    
    did not call any witnesses to support his theory.         The jury
    
    rejected Wilson's claim of self-defense and convicted him of
    
    committing a violent crime in aid of racketeering under 18 U.S.C.
    
    § 1959 and using a firearm during a crime of violence under 18
    
    
                                   -30-
    U.S.C. § 924(c).
    
         At the conclusion of the trial, the government stipulated that
    
    co-defendants Sebastian Richardson, Alonzo Bates, and Alfred Brown
    
    would have corroborated Wilson’s self-defense testimony.                         The
    
    government    further       stipulated      that,    if    those   defendants    had
    
    actually been called to testify as witnesses at the joint trial,
    
    they would have asserted their constitutional right against self-
    
    incrimination under the Fifth Amendment.                 Wilson contends that the
    
    court’s    failure     to    sever    his        trial    deprived   him    of   the
    
    corroborating testimony of co-defendants.
    
         We    review    for    abuse    of    discretion      the   district   court’s
    
    decision to try defendants jointly, United States v. Neal, 
    27 F.3d 1035
    , 1044-45 (5th Cir. 1994), cert. denied, 
    513 U.S. 10
    08, 115 S.
    
    Ct. 530, 
    130 L. Ed. 2d 433
     (1994), and to deny a motion for new
    
    trial.    Jobe, 101 F.3d at 1057.          The Supreme Court has held that “a
    
    defendant might suffer prejudice if essential exculpatory evidence
    
    that would be available to a defendant tried alone were unavailable
    
    in a joint trial.”      Zafiro v. United States, 
    506 U.S. 534
    , 539, 
    113 S. Ct. 933
    , 938, 
    122 L. Ed. 2d 317
     (1993).                To make such a showing,
    
    Wilson must demonstrate a bona fide need for the co-defendants’
    
    testimony, the substance of their testimony, the exculpatory nature
    
    and effect of such testimony, and that the co-defendant would in
    
    fact testify.       Neal, 27 F.3d at 1047.          We think that Wilson, with
    
    the help of the government’s stipulations, has done this.                   The co-
    
    
                                              -31-
    defendants    were      all   eyewitnesses   to   the    shooting,     and   the
    
    government stipulated at trial that those witnesses would verify
    
    Wilson’s account, which would be exculpatory evidence.
    
          The government contends that there was no bona fide need for
    
    the   testimony    of    co-defendants.      There      were   six   additional
    
    eyewitnesses to the shooting who were not on trial that Wilson
    
    could have called to testify. However, Wilson claims that only his
    
    co-defendants were in a position to see the twins reach for a
    
    weapon. Wilson claims that his co-defendants would testify to this
    
    very fact; each gave a statement to the police shortly after the
    
    shooting that corroborates Wilson’s account.              The government has
    
    stipulated that the co-defendants’ testimony would be exculpatory.
    
    Under these circumstances, we vacate Wilson’s conviction on count
    
    nine and remand for new trial.4
    
          The jury also convicted Wilson under 18 U.S.C. § 924(c), for
    
    using a firearm during and in relation to this federal VICAR
    
    offense.     However, because the firearm conviction depends on the
    
    commission of another crime, the government cannot convict Wilson
    
    under section 924(c) unless he has been convicted of the underlying
    
    VICAR offense.       Because we have remanded Wilson’s conviction for
    
    
    
                Donald Miller, Dexter Chambers, and Roderick Allen also alleged that
    the district court abused its discretion by failing to try them separately from
    their co-conspirators. We find their claims, individually and to the extent
    incorporated by other defendants, to be without merit. See United States v.
    PeÁa-Rodriguez, 
    110 F.3d 1120
    , 1129 (5th Cir. 1997) (finding no abuse of
    discretion in refusing to sever where culpability of each defendant was clearly
    and distinctly proven and thus there was no danger that criminal acts of some
    would be carried over to others).
    
                                         -32-
    the underlying federal crime, we vacate his derivative conviction
    
    under section 924(c) in count ten and remand for a new trial.
    
                                           B
    
          Richardson and Brown argue that the district court erred in
    
    calculating their base offense levels for the VICAR conspiracy
    
    conviction using the offense level for second-degree murder under
    
    U.S.S.G. § 2A1.2 rather than the alternative minimum base offense
    
    level provided in section 2E1.3.5           The district court applied the
    
    higher offense level based on statements made by Richardson and
    
    Brown to police following the shooting of the Henderson twins by
    
    Reginald Wilson.      Specifically, Richardson and Brown told police
    
    that one of the twins reached for what they thought was a gun
    
    immediately before Wilson shot them.            The Caddo Parish District
    
    Attorney decided not to prosecute Wilson, partly on the basis of
    
    Richardson’s and Brown’s statements.
    
          Richardson’s and Brown’s presentence reports (“PSRs”), which
    
    were adopted by the district court, found that their statements
    
    were inconsistent with the ultimate jury verdict, which rejected
    
    Wilson’s claim of self-defense.            On this ground alone, the PSRs
    
    concluded that Richardson and Brown had lied in furtherance of the
    
    VICAR conspiracy and that their statements to police were relevant
    
    conduct linking them to the murder of the Hendersons.
    
    
    
                U.S.S.G. § 2E1.3 governing VICAR offenses instructs the court to
    impose a base offense level of twelve or the base offense level applicable to the
    underlying offense, whichever is greater.
    
                                         -33-
         Where the defendant objected to the determination of relevant
    
    conduct at sentencing, we review the district court’s findings of
    
    fact for clear error.    United States v. Sneed, 
    63 F.3d 381
    , 389
    
    (5th Cir. 1995), cert. denied, ___ U.S. ___, 
    116 S. Ct. 712
    , 133 L.
    
    Ed. 2d 667 (1996).   Richardson objected to the PSR’s findings at
    
    sentencing; Brown, however, did not.   At sentencing, the district
    
    court specifically ruled that, although it would consider motions
    
    by one defendant to be adopted by all, defendants could not rely on
    
    their co-defendants’ objections to the PSRs.     Therefore, we will
    
    review the district court’s findings of fact with respect to Brown
    
    for plain error only.   United States v. Vital, 
    68 F.3d 114
    , 118-19
    
    (5th Cir. 1995).   Under Fed. R. Crim. P. 52(b), an error is plain
    
    only when (1) there is an error, (2) the error is clear or obvious,
    
    and (3) the error affects the substantial rights of the defendant.
    
    United States v. Olano, 
    507 U.S. 725
    , 731-37, 
    113 S. Ct. 1770
    ,
    
    1776-79, 
    123 L. Ed. 2d 508
     (1993); United States v. Calverley, 
    37 F.3d 160
    , 162-64 (5th Cir.) (en banc), cert. denied, ___ U.S. ___,
    
    
    115 S. Ct. 1266
    , 
    131 L. Ed. 2d 145
     (1995).     If these factors are
    
    established, we have the discretion to correct the error if it
    
    seriously affects the fairness, integrity, or public reputation of
    
    judicial proceedings.   Vital, 68 F.3d at 119.
    
         Because we vacate the jury’s verdict with respect to Wilson’s
    
    VICAR conviction for the shootings of the Henderson twins, the sole
    
    basis for the district court’s determination that Richardson and
    
    
                                    -34-
    Brown lied to police, evaporates. The district court plainly erred
    
    in resting its factual findings with respect to sentencing on a
    
    verdict that we have subsequently found to be infirm, and we find
    
    that Richardson’s and Brown’s substantial rights were prejudiced by
    
    this error.6     We therefore vacate both Richardson’s and Brown’s
    
    sentences on count one and remand to the district court.           The court
    
    may either postpone sentencing subject to Reginald Wilson’s new
    
    trial, or make additional findings of fact, unrelated to the
    
    shooting of the twins, regarding the VICAR conspiracy conviction of
    
    count one.
    
                                          C
    
          Reginald Wilson contends that one of the jurors was biased
    
    against him because the juror was a friend of the Henderson twins,
    
    who Wilson admits to having killed.             After trial, counsel for
    
    Wilson acquired affidavits from two people who claimed that juror
    
    Ricky Lewis was a friend of Michael and Mitchell Henderson. During
    
    voir dire, the court read the potential jurors a list of names and
    
    asked if the names were familiar; the names of the twins were not
    
    on the list, and Lewis truthfully replied that none of the names
    
    was familiar to him.        Wilson claims that the court would have
    
    
    
                Although “[q]uestions of fact capable of resolution by the district
    court upon proper objection at sentencing can never constitute plain error,”
    United States v. Lopez, 
    923 F.2d 47
    , 50 (5th Cir.), cert. denied, 
    500 U.S. 924
    ,
    
    111 S. Ct. 2032
    , 
    114 L. Ed. 2d 117
     (1991), the district court’s fact
    determinations depended on an erroneous legal conclusion, i.e., that the jury
    verdict against Reginald Wilson was constitutionally sound.      Therefore, we
    decline to apply the Lopez rule in this case.
    
                                        -35-
    removed Lewis for cause had it learned that Lewis knew the twins,
    
    or else Wilson would have exercised one of his peremptory strikes
    
    against him.   Wilson also claims that the court erred in failing to
    
    order a hearing at which Wilson could have shown actual bias.   See
    
    Smith v. Phillips, 
    455 U.S. 209
    , 215, 
    102 S. Ct. 940
    , 945, 71 L.
    
    Ed. 2d 78 (1982) (“This Court has long held that the remedy for
    
    allegations of juror partiality is a hearing in which the defendant
    
    has the opportunity to prove actual bias.”); United States v.
    
    Scott, 
    854 F.2d 697
    , 698 (5th Cir. 1988) (same).    Wilson suggests
    
    that the district court’s refusal to conduct a hearing denied him
    
    his constitutional right to a fair trial.
    
         Motions for new trial and decisions regarding jury bias are
    
    traditionally within the discretion of the trial court.   McDonough
    
    Power Equipment, Inc. v. Greenwood, 
    464 U.S. 548
    , 556, 
    104 S. Ct. 845
    , 850, 
    78 L. Ed. 2d 663
     (1984) (plurality opinion).    Therefore
    
    we review the district court’s denial of the motion for new trial
    
    for abuse of discretion.    United States v. Buckhalter, 
    986 F.2d 875
    , 879 (5th Cir.), cert. denied, 
    510 U.S. 873
    , 
    114 S. Ct. 203
    ,
    
    
    126 L. Ed. 2d 160
     (1993).
    
         Generally, to obtain a new trial for jury bias, a party must
    
    demonstrate (1) that a juror failed to answer honestly a material
    
    question during voir dire, and (2) that a correct response would
    
    have provided the basis for a successful challenge for cause.
    
    McDonough, 464 U.S. at 556, 104 S. Ct. at 850; Scott, 854 F.2d at
    
    
                                    -36-
    698 (applying McDonough in the criminal context).         We have applied
    
    the plurality opinion in McDonough as binding precedent in juror
    
    bias cases in this circuit.       Montoya v. Scott, 
    65 F.3d 405
    , 418
    
    n.24 (5th Cir. 1995), cert. denied, ___ U.S. ___, 
    116 S. Ct. 1417
    ,
    
    
    134 L. Ed. 2d 542
    ; United States v. Ortiz, 
    942 F.2d 903
    , 909 (5th
    
    Cir. 1991), cert. denied, 
    504 U.S. 985
    , 
    112 S. Ct. 2966
    , 
    119 L. Ed. 2d
     587.   Unlike in McDonough, there is no evidence that Lewis lied
    
    or actively concealed information during voir dire; Wilson simply
    
    failed to request that the court pose the relevant questions to the
    
    venire.       Therefore   the   traditional   McDonough    framework   is
    
    inapplicable to this case.      See United States v. Collins, 
    972 F.2d 1385
    , 1403 (5th Cir. 1992) (refusing to apply McDonough test where
    
    there was no allegation that juror concealed a material fact),
    
    cert. denied, 
    507 U.S. 1017
    , 
    113 S. Ct. 1812
    , 
    123 L. Ed. 2d 444
    
    (1993); cf. McDonough, 464 U.S. at 558-59, 104 S. Ct. at 851
    
    (Brennan, J. concurring) (noting that question of juror bias is
    
    quite independent of determination of whether potential juror lied
    
    during voir dire).
    
         Wilson did not request that the district court ask whether any
    
    of the potential jurors knew any of the victims, nor did he
    
    otherwise object to the adequacy of voir dire. “A disqualification
    
    which by reasonable diligence could have been discovered before
    
    verdict, may not afterwards be made the subject of an attack upon
    
    a verdict.”    Spivey v. United States, 
    109 F.2d 181
    , 186 (5th Cir.),
    
                                       -37-
    cert. denied, 
    310 U.S. 631
    , 
    60 S. Ct. 1079
    , 
    84 L. Ed. 1401
     (1940);
    
    see also Ford v. United States, 
    201 F.2d 300
    , 301 (5th Cir. 1953)
    
    (“It is the right and duty of a defendant to discover on voir dire
    
    examination    .   .   .   whether   a    [venireperson]    is   subject    to
    
    disqualification for cause” and objection is “ordinarily waived by
    
    failure to assert it until after verdict, even though the facts
    
    which constitute the disqualification were not previously known to
    
    the defendants”); Robinson v. Monsanto, 
    758 F.2d 331
    , 335 (8th Cir.
    
    1985) (finding that right to challenge juror is waived if basis for
    
    objection might have been discovered during voir dire had party
    
    requested appropriate line of questioning).                Wilson bears the
    
    burden of proving that the belated discovery of Lewis’s friendship
    
    with the victims was not due to lack of diligence on his part.
    
    United States v. Jones, 
    597 F.2d 485
    , 488 (5th Cir. 1979), cert.
    
    denied, 
    444 U.S. 1043
    , 
    100 S. Ct. 729
    , 
    62 L. Ed. 2d 728
     (1980).
    
    Wilson has not satisfied his burden.         He simply asserts that Lewis
    
    failed to honestly respond to questioning at voir dire without
    
    specifying which question or questions he failed to properly
    
    answer.   Wilson does not address his own failure to request that
    
    the court include Michael and Mitchell Henderson on the list of
    
    names read to the jury.
    
         Since    Wilson’s     failure   to   uncover   the    new   evidence   of
    
    potential bias stems from his own neglect, we will reverse the
    
    district court’s denial of new trial only if Wilson can show that
    
    
                                         -38-
    Lewis was actually biased against him.          Ford, 201 U.S. at 301
    
    (stating that failure to challenge juror until after verdict waives
    
    the   objection    unless   defendant   shows   actual   prejudice   or
    
    fundamental incompetence); cf. United States v. Gray, 
    105 F.3d 956
    ,
    
    962 (5th Cir. 1997), cert. denied, ___ U.S. ___, 
    117 S. Ct. 1326
    ,
    
    ___ L. Ed. 2d ___ (1997) (applying plain error analysis where
    
    defendants failed to object to manner in which court conducted voir
    
    dire); United States v. Brown, 
    26 F.3d 1124
    , 1126-27 (D.C. Cir.
    
    1994) (applying plain error analysis to claim of juror bias not
    
    raised at trial); United States v. Uribe, 
    890 F.2d 554
    , 560 n.4
    
    (1st Cir. 1989) (same).     We presume that the jury was impartial,
    
    and Wilson has the burden of proving otherwise by a preponderance
    
    of the evidence.   Collins, 972 F.2d at 1403; McDonough, 464 U.S. at
    
    558-59, 104 S. Ct. at 851 (Brennan, J. concurring).
    
          Wilson seems to argue that we may imply bias as a matter of
    
    law from Lewis’s relationship with the victims.      See Phillips, 455
    
    U.S. at 221-24, 102 S. Ct. at 948-49 (O’Connor, J. concurring)
    
    (offering examples of situations where bias might be implied);
    
    United States v. Wood, 
    299 U.S. 123
    , 133, 
    57 S. Ct. 177
    , 179, 81 L.
    
    Ed. 78 (1936) (noting that bias may be either actual or implied).
    
    However, friendship with the victim of a defendant’s alleged crime
    
    does not, standing alone, justify a finding of bias.      Cf. Montoya,
    
    65 F.3d at 420 (“Although such knowledge [of the victim] may be the
    
    source of an existing bias, ‘the mere fact that a juror knows, or
    
                                     -39-
    is a neighbor, or an intimate acquaintance of, and on friendly
    
    relations with, one of the parties to a suit, is not sufficient
    
    basis for     disqualification.’”)          (citations     omitted);   Howard    v.
    
    Davis, 
    815 F.2d 1429
    , 1431 (11th Cir.) (holding that district court
    
    did not abuse its discretion by refusing to excuse juror who had
    
    been “close friend” of victim), cert. denied, 
    484 U.S. 864
    , 108 S.
    
    Ct. 184, 
    98 L. Ed. 2d 136
     (1987); United States v. Freeman, 
    514 F.2d 171
    , 173-74 (8th Cir. 1975) (finding no abuse of discretion in
    
    failing to excuse juror who knew victim’s family).                Wilson has not
    
    demonstrated, on the basis of the affidavits alone, that Lewis was
    
    actually biased against Wilson.
    
         We furthermore reject Wilson’s contention that the district
    
    court erred in denying his motion for new trial without conducting
    
    an evidentiary hearing at which he could prove such bias.                 In his
    
    motion for new trial, Wilson specifically advised the district
    
    court that an evidentiary hearing was unnecessary.                Wilson may not
    
    claim   error    in   the   denial   of      a   remedy    that   he   explicitly
    
    disclaimed.     On the unusual facts of this case, we find no abuse of
    
    discretion in the district court’s denial of Wilson’s motion for
    
    new trial or for an evidentiary hearing.
    
                                        VIII
                                     DON WILSON
    
                                            A
    
         Don    Wilson    contends   that       counts   two    and   three   of    the
    
    indictment charged him twice for the same offense under the Double
    
                                         -40-
    Jeopardy    Clause   of   the    Fifth       Amendment.     Count   two    of    the
    
    indictment charged him with participation in a drug conspiracy
    
    under 21 U.S.C. § 846, and count three charged him with engaging in
    
    a continuing criminal enterprise (“CCE”) under 21 U.S.C. § 848.
    
    The jury convicted Wilson on both counts.                   The Supreme Court
    
    recently ruled that conspiracy under section 846 is a lesser
    
    included offense of CCE under section 848, and that conviction
    
    under both statutes constitutes unconstitutional double jeopardy.
    
    Rutledge v. United States, ___ U.S. ___, 
    116 S. Ct. 1241
    , 1247, 
    134 L. Ed. 2d 419
     (1996).           The government concedes that Wilson’s
    
    section    846   conviction     should    be    vacated    on   double    jeopardy
    
    grounds.      We   therefore     vacate       Wilson’s    conviction     for    drug
    
    conspiracy in count two of the indictment.
    
                                             B
    
          Next, Don Wilson challenges his CCE conviction under 21 U.S.C.
    
    § 848.     To show a CCE violation, the government must prove that
    
    Wilson organized, supervised or managed five or more persons in a
    
    continuing series of drug violations (at least three) from which he
    
    obtained substantial income.         Garrett v. United States, 
    471 U.S. 773
    , 786, 
    105 S. Ct. 2407
    , 2415, 
    85 L. Ed. 2d 764
     (1985).7                       The
    
    five people involved in the CCE need not have acted in concert or
    
    
    
                Wilson argues that the jury must unanimously agree on which three
    substantive offenses constitute the continuing series of drug violations and the
    failure to so instruct the jury constitutes reversible error. We have never held
    that such an instruction is required and do not address the question here since
    Wilson failed to request a specific instruction or object to the charge given.
    
                                         -41-
    at the same time.    United States v. Phillips, 
    664 F.2d 971
    , 1034
    
    (5th Cir. Unit B 1981), cert. denied, 
    457 U.S. 1136
    , 
    102 S. Ct. 2965
    , 
    73 L. Ed. 2d 1354
     (1982).       The defendant need not have been
    
    the sole or dominant organizer or manager of the enterprise.
    
    United States v. Tolliver, 
    61 F.3d 1189
    , 1215-16 (5th Cir, 1995),
    
    vacated on other grounds, Sterling v. U.S., ___ U.S. ___, 116 S.
    
    Ct. 900, 
    133 L. Ed. 2d 834
     (1996).         Nor need he have directly or
    
    personally organized, supervised, or managed five people, United
    
    States v. Hinojosa, 
    958 F.2d 624
    , 630 (5th Cir. 1992), or even have
    
    had personal contact which each underling.          Tolliver, 61 F.3d at
    
    1216.   “Thus, the requisite associations and relationships may be
    
    found even in loosely structured enterprises.”            Id.
    
                                         1
    
         Wilson argues that the evidence was insufficient to prove that
    
    he had a managerial or supervisory role in the drug trafficking
    
    organization.   In particular, he argues that although the evidence
    
    establishes that he was a leader in the gang, it does not establish
    
    that he directed the drug dealing activities of at least five
    
    different people or that he did anything other than front drugs to
    
    gang members.    Wilson cites United States v. Witek, 
    61 F.3d 819
    ,
    
    822, 824 (11th Cir. 1995), cert. denied, ___ U.S. ___, 
    116 S. Ct. 738
    , 
    133 L. Ed. 2d 688
     (1996), for the proposition that a mere
    
    buyer-seller    relationship   is    insufficient    to     support   a   CCE
    
    conviction.
    
                                        -42-
         The government, however, cites to evidence in the record that
    
    shows   that   Wilson   occupied   more   than   a   mere    buyer-seller
    
    relationship with other members of the Bottoms Boys.         Testimony at
    
    trial indicates that Wilson was one of six “O.G.s,” and that, as a
    
    leader of the gang, he controlled both the membership of the
    
    organization and the identities of the sellers on the gang’s “turf”
    
    who numbered far more than five.     We agree that from this evidence,
    
    a rational jury could reasonably infer that Wilson was an organizer
    
    and manager of the drug-selling operation and all of its members.
    
                                        2
    
         Second, Wilson argues that the government failed to show that
    
    he derived substantial income from the enterprise.          In particular,
    
    he argues that the government must present evidence of specific
    
    amounts earned from the conspiracy; it is not enough for the
    
    government to offer generalized testimony that Wilson had “a lot”
    
    of cars and that he was seen with “a lot” of money.          We disagree.
    
    The government need not specifically trace the source of income to
    
    the drug trade or show specific amounts.         In fact, the jury may
    
    infer substantial income from outward evidence of wealth in the
    
    absence of other, legitimate sources of income.        United States v.
    
    Chagra, 
    669 F.2d 241
    , 257 (5th Cir.), cert. denied, 
    459 U.S. 846
    ,
    
    
    103 S. Ct. 102
    , 
    74 L. Ed. 2d 92
     (1982), overruled on other grounds,
    
    Garrett v. United   States, 
    471 U.S. 773
    , 
    105 S. Ct. 2407
    , 
    85 L. Ed. 2d
     764 (1985).
    
    
                                       -43-
         The   government   presented       evidence   that   Wilson   owned
    
    approximately eleven cars, including three or four Cadillacs, and
    
    had a ready supply of drugs.    However, Wilson had no legitimate
    
    employment or other source of income.          Furthermore, there was
    
    testimony that Wilson earned thousands of dollars selling drugs
    
    that he stashed in vacant houses.       Therefore, viewing the evidence
    
    in the light most favorable to the verdict, we find that the
    
    evidence was sufficient to support a CCE conviction.
    
                                    IX
                               ALFRED BROWN
    
                                        A
    
         Count twenty-three of the indictment charged Alfred Brown with
    
    possessing cocaine base with intent to distribute, in violation of
    
    21 U.S.C. § 841(a)(1), “[o]n or about February 9, 1992.”           Count
    
    twenty-four charged him with using and carrying a firearm during
    
    and in relation to a drug trafficking offense, in violation of 18
    
    U.S.C. § 924(c)(1), also “[o]n or about February 9, 1992.”           The
    
    proof at trial, however, demonstrated that the events supporting
    
    the indictment occurred on July 9, 1992, the date on which Brown
    
    was arrested for the substantive offense of possession of cocaine
    
    with intent to distribute.     Moreover, the evidence demonstrated
    
    that the substance in Brown’s possession on that date was cocaine
    
    hydrochloride, or powder cocaine, not cocaine base as alleged in
    
    the indictment.   Brown asserts that these variances are fatal to
    
    his convictions on these counts.
    
    
                                    -44-
          The district court correctly instructed the jury that, by
    
    alleging that the offense occurred “on or about” February 9, 1992,
    
    the   government   need   only   show   that   the   crime    was   committed
    
    reasonably near that date.          Phillips, 664 F.2d at 1036; United
    
    States v. Grapp, 
    653 F.2d 189
    , 195 (5th Cir. Unit A 1981).            A five-
    
    month variance between the date alleged and the date proved is not
    
    unreasonable as a matter of law as long as the date proven falls
    
    within the statute of limitations and before the return of the
    
    indictment.   Phillips, 664 F.2d at 1036.       See also United States v.
    
    Harrell, 
    737 F.2d 971
    , 981 (11th Cir. 1984) (upholding conviction
    
    where indictment alleged that offense occurred in February 1980 but
    
    proof showed that offense occurred during the summer of 1980),
    
    cert. denied, 
    469 U.S. 1164
    , 
    105 S. Ct. 923
    , 
    83 L. Ed. 2d 935
    
    (1985).
    
          Moreover, a variance between allegations and proof is fatal
    
    “only when it affects the substantial rights of the defendant by
    
    failing to sufficiently notify him so that he can prepare his
    
    defense and will not be surprised at trial.”           Phillips, 664 F.2d
    
    at 1036.      Brown cannot demonstrate that he was surprised or
    
    prejudiced in any way       by the February 9, 1992, date in the
    
    indictment.      Brown knew that he was arrested on July 9 for
    
    possession of cocaine with intent to distribute.             In fact, it was
    
    Brown’s attorney who brought the error in the indictment to the
    
    attention   of   the   prosecutor    shortly   after   Brown’s      arrest   in
    
    
                                        -45-
    September of 1994, several months before trial.                  Moreover, Brown
    
    filed a motion to suppress evidence gathered on July 9, 1992, thus
    
    demonstrating that he was aware of and was fully prepared to defend
    
    against the government’s allegations with respect to Brown’s arrest
    
    on July 9.
    
           Furthermore, although the indictment incorrectly alleged that
    
    the substance seized from Brown was cocaine base (crack) rather
    
    than cocaine hydrochloride, the particular form of the cocaine is
    
    not an element of the offense under section 841(a)(1) and is thus
    
    immaterial to a conviction.         The jury need only have found that the
    
    substance was some form of cocaine and thus a controlled substance.
    
    United   States    v.    Deisch,   
    20 F.3d 139
    ,    151   (5th    Cir.   1994).
    
    Moreover,    for   the    same     reasons      stated    above,      Brown   cannot
    
    demonstrate that he was prejudiced in any way by the error in the
    
    indictment.
    
                                             B
    
           Brown next argues that the jury could not have concluded from
    
    the small amount of cocaine seized that Brown possessed the drugs
    
    with intent to distribute.         However, we agree with the government
    
    that   the   evidence     is   sufficient       to   support    the    conviction.
    
    Witnesses testified that Brown purchased large amounts of cocaine
    
    in Houston for distribution in the Bottoms, and investigators
    
    observed numerous drug transactions involving Brown’s Cadillac
    
    throughout the day on July 9, 1992.              The fact that police seized
    
    
    
                                            -46-
    only .1 grams of cocaine at the end of the day is not inconsistent
    
    with possession with intent to distribute.
    
                                             C
    
          Next, Brown argues that the evidence is insufficient to
    
    support the allegation in count twenty-four that he used a firearm
    
    during and in relation to a drug trafficking crime.                  In Bailey v.
    
    United States, ___ U.S.___,___, 
    116 S. Ct. 501
    , 
    133 L. Ed. 2d 472
    
    (1995), decided after Brown’s conviction, the Supreme Court held
    
    that section 924(c)(1) requires evidence sufficient to show active
    
    employment of a firearm by the defendant, not mere possession or
    
    intended use. Id. at 505-09.        Bailey applies retroactively to this
    
    appeal.   United States v. Rivas, 
    85 F.3d 193
    , 195 n.1 (5th Cir.),
    
    cert. denied, ___ U.S. ___, 
    117 S. Ct. 593
    , 
    136 L. Ed. 2d 521
    
    (1996).
    
          While we agree that the evidence is insufficient to prove that
    
    Brown “used” a firearm, the indictment charged him with both using
    
    and carrying firearms under section 924(c).                  The government need
    
    not prove that Brown both used and carried the firearms seized; a
    
    showing that he carried a firearm during and in relation to his
    
    drug trafficking crime would suffice.                A “disjunctive statute may
    
    be pleaded conjunctively and proved disjunctively.”                 United States
    
    v.   Dickey,   
    102 F.3d 157
    ,   164       n.8    (5th   Cir.   1996)   (citation
    
    omitted). Bailey did not address the “carrying” requirement of the
    
    statute; thus previous precedent with respect to that prong remains
    
                                         -47-
    unaffected.    Rivas, 85 F.3d at 195.
    
         We have held that “the ‘carrying’ requirement of § 924(c) is
    
    met ‘if the operator of the vehicle knowingly possesses the firearm
    
    in the vehicle during and in relation to a drug trafficking
    
    crime.’” Id. (quoting United States v. Pineda-Ortuno, 
    952 F.2d 98
    ,
    
    104 (5th Cir.), cert. denied, 
    504 U.S. 928
    , 
    112 S. Ct. 1990
    , 118 L.
    
    Ed. 2d 587 (1992)).          At the time of Brown’s arrest for drug
    
    possession, police found a firearm next to the driver’s seat of
    
    Brown’s car and another in the trunk.          The evidence was sufficient
    
    for the jury to find that Brown “carried” a firearm for the
    
    purposes of section 924(c).          See United States v. Brown, 
    102 F.3d 1390
    ,   1401   (5th   Cir.   1996)    (finding   evidence   sufficient   for
    
    “carrying” prong where defendants had gun in van while transporting
    
    drugs), cert. denied, ___ U.S. ___,          
    117 S. Ct. 1455
    , ___ L. Ed. 2d
    
    ___ (1997); United States v. Fike, 
    82 F.3d 1315
    , 1328 (5th Cir.)
    
    (finding evidence supported “carrying” where defendant had gun in
    
    car within reach during drug transaction), cert. denied, ___ U.S.
    
    ___, 
    117 S. Ct. 241
    , 
    136 L. Ed. 2d 170
     (1996).
    
         The district court instructed the jury that it must find that
    
    Brown “knowingly used or carried a firearm” and that the firearm
    
    “was an integral part of the drug offense charged.”          The court did
    
    not otherwise define “use” or “carry” except to instruct that the
    
    government need not prove that a defendant “actually fired the
    
    weapon or brandished it at someone in order to prove use . . . .”
    
    
                                          -48-
    We recognize that, after Bailey, this is no longer a correct
    
    statement of the law.      Bailey, ___ U.S. at ___, 116 S. Ct. at 507.
    
          However, we note that this erroneous instruction is not
    
    harmful per se.      The jury did not specify whether it found Brown
    
    guilty of use or carrying of the weapon in this case; however, we
    
    have established that there is sufficient evidence to show that he
    
    carried the weapon in his car.8          Based on these facts, we infer
    
    that the jury could not have improperly convicted Brown for a “use”
    
    that would not also support a proper conviction for carrying a
    
    weapon.     We find that the erroneous instruction was harmless;
    
    therefore automatic reversal in this case makes little sense.
    
          We are nevertheless constrained by our own precedent to vacate
    
    Brown’s conviction.        In both Brown and Fike, we held that a
    
    defendant’s conviction must be vacated and remanded for a new trial
    
    on the “carrying” prong alone where the district court instructed
    
    the jury under the liberal, pre-Bailey definition of “use.” Brown,
    
    102 F.3d at 1401; Fike, 82 F.3d at 1328.                Brown and Fike are
    
    factually indistinguishable from this case in all relevant respects
    
    and are therefore binding; we have long insisted that one panel of
    
    the court may not overrule another panel because it disagrees with
    
    its holding.      Montesano v. Seafirst Commercial Corporation, 818
    
    
                It is possible, of course, under a different set of facts, to
    conceive of a theory of passive “use” under the erroneous instruction that would
    not support a conviction under the “carry” prong))for example, where police find
    a gun in close proximity to drugs in a bedroom closet, as they did in Bailey.
    However, there was no evidence introduced against Brown in this case to support
    such an improper conviction for “use.”
    
                                         -49-
    F.2d 423, 425-26 (5th Cir. 1987).        Therefore, barring en banc
    
    reconsideration of the issue or an intervening Supreme Court
    
    decision, we must vacate Brown’s section 924(c) conviction and
    
    remand the count for retrial on the carry prong alone.
    
                                        D
    
         At trial, the government called Jacqueline English, Brown’s
    
    longtime companion, as a witness.            English denied having any
    
    knowledge of Brown’s alleged drug sales or his purchasing trips to
    
    Houston and denied that she had ever discussed such matters during
    
    an interview with FBI agent Dan McMullen in September 1994.        After
    
    English stepped down, the government called Agent McMullen to the
    
    stand but promptly released him without questioning.
    
         In his closing, Brown’s attorney argued that the only logical
    
    conclusion that the jury could draw from Agent McMullen’s failure
    
    to testify was that McMullen’s testimony would not have helped the
    
    government’s case.      During rebuttal, the government responded to
    
    these allegations by stating, over counsel’s objection:
    
         The rules of evidence do not allow the Government to call
         the agent to impeach her.      I called him and then I
         realized I could not by the rules of evidence.       I am
         prohibited by the rules of evidence from doing that. So
         that’s why we call [sic] him back.       It’s a rule of
         evidence, it’s a legal rule of evidence that kept Agent
         McMullen off the stand.
    
    Brown   argues   that   the   prosecutor’s    statements   impermissibly
    
    suggested to the jury that otherwise inadmissible evidence existed
    
    that would rebut English’s testimony.
    
    
    
                                      -50-
         We have previously held that the government may not seek to
    
    impeach a witness with evidence not in the record by suggesting
    
    that, but for the rules of evidence, such proof would have been
    
    presented at trial. United States v. Vaglica, 
    720 F.2d 388
    , 394-95
    
    (5th Cir. 1983) (finding error in permitting prosecutor to argue
    
    that, but for rules of evidence, government would have been able to
    
    rebut defendant’s testimony); United States v. Morris, 
    568 F.2d 396
    , 401 (5th Cir. 1978) (“This Court has repeatedly held . . .
    
    that an attorney may not say anything to the jury implying that
    
    evidence supporting the attorney's position exists but has not been
    
    introduced in the trial.”).           Such comments may constitute error
    
    even if merely responsive to comments by defense counsel.                  United
    
    States v. Diaz, 
    662 F.2d 713
    , 717 (11th Cir. 1981).
    
         However,   even    assuming        arguendo     that    the   prosecutor’s
    
    statements were improper, the error was harmless.              See Morris, 568
    
    F.2d at 402 (holding that prosecutor’s statements “must be regarded
    
    as harmless if, upon examination of the entire record, substantial
    
    prejudice to the defendant does not appear”); United States v.
    
    Diaz-Carreon,   
    915 F.2d 951
    ,     956   (5th   Cir.    1990)   (“Improper
    
    prosecutorial   comments      require    reversal     only   if    the   comments
    
    substantially affected the defendant's right to a fair trial.”).
    
    The record is replete with evidence of Brown’s involvement in the
    
    conspiracy as its major drug supplier.               English did not testify
    
    that any of the evidence against Brown was false or that Brown was
    
    
                                          -51-
    actually innocent; she simply denied having any knowledge of his
    
    drug trafficking activity.   Her impeachment, even by impermissible
    
    means, was immaterial to Brown’s conviction.     We therefore find
    
    that the prosecutor’s comments at closing were harmless.       See
    
    United States v. Lester, 
    749 F.2d 1288
    , 1302 (9th Cir. 1984)
    
    (finding similar error harmless in light of overwhelming evidence
    
    of guilt); cf. Vaglica, 720 F.2d at 395 (finding reversible error
    
    where prosecutor implied that, but for rules of evidence, it could
    
    rebut primary evidence supporting defense).
    
                                     X
                           SEBASTIAN RICHARDSON
    
                                     A
    
         Sebastian Richardson argues that the district court erred in
    
    denying his motion for new trial on the drug distribution charge in
    
    count twenty-two.   The decision to grant or deny a motion for new
    
    trial based on the weight of the evidence is within the sound
    
    discretion of the trial court. An appellate court may reverse only
    
    if it finds the decision to be a “clear abuse of discretion.”
    
    United States v. Dula, 
    989 F.2d 772
    , 778 (5th Cir.), cert. denied,
    
    
    510 U.S. 859
    , 
    114 S. Ct. 172
    , 
    126 L. Ed. 2d 131
     (1993).   The court
    
    may not reweigh the evidence and set aside the verdict simply
    
    because it feels some other result would be more reasonable.
    
    United States v. Robertson, 
    110 F.3d 1113
    , 1118 (5th Cir. 1997).
    
    Rather, the evidence must weigh heavily against the verdict, such
    
    that it would be a miscarriage of justice to let the verdict stand.
    
                                    -52-
    Id.
    
          Richardson argues that the weight of the evidence shows that
    
    the government informant, Mary Gladney, mistook Roderick Allen for
    
    Richardson during a drug purchase and that Deputy Carl Townley
    
    misidentified Richardson’s voice on the tape of that transaction.
    
    Specifically, Richardson points to testimony by Gladney that the
    
    person from    whom   she   purchased   the   drugs    was   bald,   although
    
    Richardson was not bald on the day in question, and testimony that
    
    Allen, who was bald, sometimes answered to Richardson’s nickname
    
    “Bam Bam.”
    
          We find that this is an isolated inconsistency in testimony
    
    that the jury could reasonably find did not call into question
    
    other inculpatory evidence.        Both witnesses were subjected to
    
    extensive    cross-examination    concerning     the    identification    of
    
    Richardson.    Townley testified that he had known Richardson for
    
    years and could recognize his voice.          Although Gladney testified
    
    that the seller was bald, her testimony indicated that she had not
    
    been concentrating on his appearance at the time.            The jury could
    
    easily have concluded beyond a reasonable doubt that the seller
    
    responding to the name “Bam Bam” was Richardson. Where the defense
    
    had ample opportunity to attack the reliability of a witness at
    
    trial, but the jury chose to credit that testimony anyway, the
    
    district court did not abuse its discretion in denying the motion
    
    for new trial. Dula, 989 F.2d at 778.
    
    
    
                                      -53-
                                    B
    
         At trial, former gang member Rashaun Kimble testified that he,
    
    Richardson, and Richard Pea (a.k.a. “Posse”) participated in a
    
    “walk-by” shooting. The government cited the testimony as evidence
    
    of Richardson’s involvement in the VICAR conspiracy. During trial,
    
    a defense investigator interviewed Pea, who stated that he had
    
    never been involved in such a shooting with Kimble and Richardson.
    
    After trial, Pea signed an affidavit swearing that Kimble had tried
    
    to persuade Pea to lie about his involvement because Kimble “was
    
    pressed to come up with the name of a third party to make the story
    
    believable.”   Richardson contends that the district court should
    
    have granted his motion for a new trial based on this newly
    
    discovered evidence.
    
         To receive a new trial under Fed. R. Crim. P. 33 Richardson
    
    must prove that: “(1) the evidence is newly discovered and was
    
    unknown to the defendant at the time of trial; (2) failure to
    
    detect the evidence was not due to a lack of diligence by the
    
    defendant; (3) the evidence is not merely cumulative or impeaching;
    
    (4) the evidence is material; and (5) the evidence introduced at a
    
    new trial would probably produce an acquittal.”    United States v.
    
    Jaramillo, 
    42 F.3d 920
    , 924 (5th Cir. 1995), cert. denied, ___ U.S.
    
    ___, 
    115 S. Ct. 2014
    , 
    131 L. Ed. 2d 1013
     (1995).   The motion must
    
    be denied if all elements of the test are not satisfied.    Id. at
    
    924-25. The evidence at issue here is not “newly discovered” since
    
    
                                   -54-
    Pea stated in the affidavit that he offered this information to the
    
    defense investigator at the time of the initial interview during
    
    the trial.        The fact that defense counsel did not adequately
    
    communicate with persons investigating on its behalf does not mean
    
    the information could not have been detected through reasonable
    
    diligence.       Even if Pea did not give this specific information to
    
    the investigator, counsel was aware of inconsistencies between
    
    Pea’s and Kimble’s accounts but chose not to call Pea to testify.
    
    See United States v. Time, 
    21 F.3d 635
    , 642 (5th Cir. 1994)
    
    (finding that no new trial was warranted when defendant had reason
    
    to believe that witness possessed information but failed to cross-
    
    examine him at trial).
    
          At any rate, it is highly unlikely that a new trial would
    
    produce an acquittal given the wealth of evidence of Richardson’s
    
    violent acts and his status as a “reaper” and “enforcer” in the
    
    gang.      The district court did not abuse its discretion in denying
    
    Richardson’s motion for new trial.
    
                                           XI
                                      ALONZO BATES
    
          Alonzo     Bates   argues   that   the   government   failed   to   show
    
    conspiracy-related activity after Bates reached the age of majority
    
    on   May    6,   1994.    Bates    apparently    challenges   this   court’s
    
    jurisdiction under the Juvenile Delinquency Act (“JDA”), 18 U.S.C.
    
    § 5031 et seq.       Interpretation of the JDA is a question of law,
    
    which we review de novo.      Under the JDA, the Attorney General must
    
                                          -55-
    certify that “there is a substantial Federal interest in the case
    
    or the offense to warrant the exercise of Federal jurisdiction,”
    
    and that one of three factors is satisfied before proceeding
    
    against any juvenile in federal court. 18 U.S.C. § 5032; Tolliver,
    
    
    61 F.3d 1189
    ,   1199.    The   JDA     requirement     is   jurisdictional;
    
    therefore   federal   courts    may    not   prosecute   juveniles   without
    
    certification.    Tolliver, 61 F.3d at 1199.
    
          Bates, however, is not a juvenile, and he is not being tried
    
    for acts completed before he turned eighteen.            Although the crime
    
    of conspiracy is “complete” at the moment the deal is struck, it is
    
    a continuing crime that may extend from before a defendant’s
    
    eighteenth birthday into his adult life.          Id. at 1200.      A federal
    
    court may try a defendant who has turned eighteen for a conspiracy
    
    that began before his eighteenth birthday if the government can
    
    show that the defendant ratified his involvement in the conspiracy
    
    after reaching majority.       Id.
    
          The jury convicted Bates of selling drugs to an undercover
    
    police officer August 26, 1994, several months after Bates’s
    
    eighteenth birthday.      The jury therefore could properly consider
    
    evidence of conspiracy activity before Bates reached the age of
    
    majority and convict him under count two of the drug conspiracy.
    
    Tolliver, 61 F.3d at 1200.           To the extent Bates challenges the
    
    sufficiency of the evidence to support the August 26 drug charge,
    
    we find that a rational jury could have found him guilty on the
    
    
                                          -56-
    evidence presented at trial.
    
                                       XII
                              SENTENCING CHALLENGES
    
         Defendants raise various challenges to the application of the
    
    sentencing guidelines.     We review the district court’s application
    
    of the Sentencing Guidelines de novo, and review the district
    
    court’s factual findings for clear error, giving deference to the
    
    district court’s application of the guidelines to the facts.
    
    United States v. West, 
    58 F.3d 133
    , 137 (5th Cir. 1995).
    
                                         A
    
         Richardson argues that the district court misapplied U.S.S.G.
    
    § § 3B1.1(a) by applying a four-level increase to the offense
    
    levels of both the VICAR group of offenses and the drug group of
    
    offenses.9   Richardson cites United States v. Kleinebreil for the
    
    proposition that this increase constitutes impermissible “double
    
    counting.”    
    966 F.2d 945
    , 955 (5th Cir. 1992).
    
         Kleinebreil is inapposite.            In that case, the defendant
    
    received a three-level increase to the offense level of his drug
    
    convictions based on his supervisory role in the drug conspiracy.
    
    Kleinebreil, however, also received a three-level increase to the
    
    offense level of his assault group of convictions, even though he
    
    was the only participant in the assault.             The court held that
    
    
    
    
                U.S.S.G. § 3B1.1(a) states: “If the defendant was an organizer or
    leader of a criminal activity that involved five or more participants or was
    otherwise extensive, increase by 4 levels.”
    
                                        -57-
    because the section 3B1.1 enhancement must be anchored in the
    
    transaction leading to the conviction, the characteristics of one
    
    group of offenses could not be used to enhance the offense level of
    
    an unrelated group of offenses.          Id. at 955.
    
         Here,   however,   the    government      presented   evidence     that
    
    Richardson, along with Don Wilson and Alfred Brown, were leaders in
    
    both the VICAR conspiracy and the drug conspiracy, two distinct
    
    conspiracies to violate distinct criminal laws.              The district
    
    court’s   fact   findings   were   not    clearly   erroneous;   the   court
    
    properly applied the enhancement provision to both groups of
    
    offenses.
    
                                         B
    
         Alonzo Bates, Donald Miller, and Roderick Allen challenge the
    
    court’s two-level enhancement for use of a firearm during drug
    
    trafficking activities under U.S.S.G. § § 2D1.1(b)(1) on the ground
    
    that the government did not adequately demonstrate that their
    
    possession of firearms was related to their sale of drugs.                In
    
    addition, Bates asserts that application of the enhancement to him
    
    was unwarranted since the government did not seek this enhancement
    
    against all the other defendants.         These arguments are completely
    
    without merit.      Although a conviction on a substantive count
    
    requires proof beyond a reasonable doubt, the district court may
    
    sentence a defendant within the Sentencing Guidelines on any
    
    relevant evidence that “has sufficient indicia of reliability to
    
    
    
                                       -58-
    support its probable accuracy.” U.S.S.G. § 1B1.3; United States v.
    
    Buchanan, 
    70 F.3d 818
    , 828 (5th Cir. 1995), cert. denied, ___ U.S.
    
    ___, 
    116 S. Ct. 1340
    , 
    134 L. Ed. 2d 490
     (1996); United States v.
    
    Edwards, 
    65 F.3d 430
    , 432 (5th Cir. 1995).         Cf. United States v.
    
    Watts, ___ U.S. ___, ___, 
    117 S. Ct. 633
    , 635, 
    136 L. Ed. 2d 554
    
    (1997)   (noting   that   Guidelines    Manual   section      1B1.3   charges
    
    sentencing   court   to   consider     “entire   range   of    conduct”    in
    
    sentencing defendant).     The district court heard testimony during
    
    the sentencing hearing that Bates, Miller, and Allen carried guns
    
    and that guns were used by Bottoms Boys in relation to the drug
    
    trade.   We find that this evidence has sufficient reliability for
    
    use by the district court in enhancing the sentences of the gang
    
    members.
    
         Furthermore, even assuming that Bates’s propensity to tote
    
    guns placed him on a par with other defendants, there is no
    
    requirement of parity in the sentencing enhancements of similarly
    
    situated defendants. The decision of whether to enhance a sentence
    
    is properly within the discretion of the district court judge.
    
    Koon v. United States, ___ U.S. ___, ___, 
    116 S. Ct. 2035
    , 135 L.
    
    Ed. 2d 392 (1996) (citing 18 U.S.C. § 3742).        Finding no abuse of
    
    that discretion, we will not disturb the enhancement.
    
                                     XIII
    
         Appellants raise numerous other issues that do not merit
    
    discussion in this opinion.    Specifically, Alonzo Bates challenges
    
    
                                     -59-
    the trial court’s finding that the government articulated race-
    
    neutral explanations for its peremptory strikes of certain African-
    
    American veniremen; Patrick Miller challenges the court’s decision
    
    to allow the government to reopen its case before the close of
    
    trial to correct an evidentiary error; Reginald Wilson charges
    
    prosecutorial misconduct due to puffing in the government’s opening
    
    statement; Roderick Allen challenges the specificity of the dates
    
    in the indictment and the court’s refusal to decrease his offense
    
    level as a minor or minimal participant; Troy Bellamy challenges
    
    the constitutionality of the disparate penalty provisions for
    
    cocaine      base   (crack)      versus     cocaine    powder;      and   Sebastian
    
    Richardson     argues     that   ambiguity       in   the   scope   of    the   VICAR
    
    conspiracy alleged in the indictment prejudiced his ability to
    
    prepare a defense.        After a careful review of the briefs and the
    
    evidence in the record, we find that these arguments are without
    
    merit under the established law of this circuit and affirm the
    
    district court without further discussion.
    
                                              XIV
    
          Therefore we VACATE Donald Wilson’s conviction on count two;
    
    VACATE Reginald Wilson’s convictions on counts nine and ten and
    
    Alfred Brown’s conviction on count twenty-four and REMAND for new
    
    trial; VACATE Sebastian Richardson’s and Alfred Brown’s sentences
    
    on   count    one   and   REMAND    for     resentencing;     REMAND      the   Brady
    
    challenge regarding the interview notes for further proceedings in
    
    
    
                                              -60-
    accordance with this opinion; and AFFIRM all other convictions in
    
    all respects.
    
    
    
    
                                  -61-