U.S. v. Webster ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-1487
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES E. WEBSTER and BOBBY NELSON,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(May 5, 1992)
Before KING, JOHNSON and DAVIS, Circuit Judges.
PER CURIAM:
Charles Webster and Bobby Nelson were convicted of
conspiracy to distribute and possess with intent to distribute
controlled substances. Webster was also convicted of money
laundering and using and carrying a firearm during and in
relation to a drug offense. They appeal their convictions and
their sentences, arguing that the district court made numerous
errors throughout the trial and sentencing. We affirm their
convictions, but vacate and remand their sentences to allow the
district court to determine the amount of drugs each defendant
knew or reasonably should have foreseen was involved in the
conspiracy.
I. BACKGROUND
Charles Webster and Bobby Nelson were tried together on a
seven-count indictment. Both were charged with conspiring to
distribute, and possess with intent to distribute, controlled
substances. The remaining six counts were brought against
Webster only. Five counts charged him with instances of money
laundering and one count charged him with using and carrying a
firearm during and in relation to a drug trafficking offense.
The jury found the defendants guilty as charged after a six-day
trial.
Webster owned a building in Amarillo which housed a
restaurant known as the Cotton Club. He leased the restaurant to
Nelson, who operated it. Both Webster and Nelson sold drugs
(including cocaine, marijuana, Preludin and Dilaudid) from
various locations, including inside and outside the building that
housed the Cotton Club, as well as the adjacent building, their
vehicles, their residences, and a car wash.
In October 1988 the county sheriff's department executed a
search warrant for the building next to the Cotton Club and for
Webster's vehicle. Under a bench in front of the building, the
search uncovered a plastic bag with two glass bottles containing
Dilaudid and Preludin tablets. The search of Webster's car
revealed the following items: a .22 caliber pistol and a
marijuana cigarette in the trunk, and a tupperware container in
the front seat, which contained a billfold with Webster's
driver's license and credit cards, a plastic drinking cup with
2
Webster's fingerprints, a ledger, a loaded .357 magnum, and a
baggie containing 55.47 grams of cocaine. A December 1988 search
of the Cotton Club turned up a freezer bag, containing marijuana
and cocaine, and a number of small plastic baggies contained in a
larger plastic bag. A search of Webster's residence resulted in
the seizure of a glass crack pipe from under the seat of his
Mercedes (where he had been seated), cocaine, $30,215 in cash,
$44,000 in savings bonds, several firearms, a set of electric
scales, and thousands of small zip-lock baggies. The district
court denied Webster's motion to suppress the evidence resulting
from the search of his residence.
Six days after the trial was over, the defendants moved for
a new trial on the ground of juror incompetence and misconduct.
Accompanying the motions for a new trial was an affidavit of an
alternate juror who stated that one of the jurors suffered from a
hearing impairment throughout most of the trial, and repeatedly
asked other jurors to repeat what had been said. The court heard
testimony from the alternate juror, as well as from additional
witnesses, and ultimately denied the motion.
II. DISCUSSION
A. New Trial for Juror Misconduct/Incompetency
Webster and Nelson argue that the trial court should have
conducted a fuller investigation into jury misconduct and
incompetence, or should have granted them a new trial. The
district court held two hearings on the defendants' motion for a
new trial. At those hearings, the court heard testimony,
3
elicited by the defendants, from an alternate juror (Hathcock),
and from a government agent with whom Hathcock had previously
cooperated in an undercover capacity in a different matter. The
government called the court security officer who served as
bailiff during the trial (Glen Parrot), the district court clerk
during the trial (Sharon Sauls), Hathcock's estranged wife (Patty
Hathcock), and an acquaintance of the Hathcocks' (Celia Forbis)
to testify at the second hearing on motion for new trial.
Following those hearings, the court denied the defendants' motion
for a new trial, finding that Hathcock's testimony was not
credible.
Hathcock testified that one of the jurors (McGill) had
trouble hearing during the trial. Parrot testified that, at one
point during the trial, a number of the jurors expressed
difficulty hearing Nelson's attorney, but that no individual
juror indicated a particular problem hearing during the course of
the trial. He testified that he later asked if anyone was having
difficulty hearing, and the jurors indicated they were no longer
having any trouble. The other witnesses testified regarding
Hathcock's credibility and his acquaintance with one of the
defense lawyers.
McGill evidently was suffering from an allergy which caused
her sinuses to fill and her ears to block. The trouble first
appeared during voir dire, when McGill informed the judge that
she was having trouble hearing what was going on. At that point
the court informed her that if she was selected as a juror she
4
would be seated in the jury box, closer to the proceedings. For
the remainder of the voir dire, however, the judge invited McGill
to move to a seat which would place her closer to the lawyers and
the judge. After taking a closer seat, McGill was asked by the
prosecutor whether she could hear adequately. McGill replied
that she could, "sometimes." The judge informed McGill that if
she had trouble hearing, she should inform the court, to which
McGill replied: "My ears are really stopped." The judge
responded, "All right," and the voir dire continued. Evidently,
neither side attempted to exclude McGill from the jury for cause
or otherwise. In fact, the issue of McGill's hearing did not
arise again until after the trial and verdict, when the
defendants submitted their motion for new trial.
The defendants argue that the district court did not
adequately respond to their motion for new trial. They contend
that the court should have engaged in further questioning,
including interviews of the jurors, in order to ascertain
McGill's ability to follow the proceedings and whether or not her
actions (asking other jurors what had been said) constituted
juror misconduct. They cite United States v. McKinney, 429 F.2d
1019 (5th Cir. 1970) (McKinney I), for the proposition that the
court should have gone further than it did. The defendants
contend that McKinney I imposes a strict procedure, which a judge
must follow whenever a new trial motion alleges juror misconduct.
The procedure would include a "full investigation" to determine
whether the misconduct occurred, and if so, whether it was
5
prejudicial. In any event, the judge must set forth any findings
with adequate specificity for meaningful appellate review.
McKinney I, 429 F.2d at 1026.
This argument ignores the fact that we repudiated McKinney I
on rehearing. United States v. McKinney, 434 F.2d 831, 833 (5th
Cir. 1970), cert. denied, 401 U.S. 922 (1971) (McKinney II). In
McKinney II, the court noted the inappropriateness of a strict
procedure in cases such as this; instead, the court required
fact-specific decision-making. "The trial court's duty in
deciding a motion for new trial when jury misconduct is alleged
must be judged on the peculiar facts and circumstances of each
case. . . . And the trial court's decision will be reversed only
upon a showing of an abuse of discretion." United States v.
Sedigh, 658 F.2d 1010, 1014 (5th Cir. Unit A 1981), cert. denied,
455 U.S. 921 (1982) (citing McKinney II).
We review the district court's denial of the defendants'
motion for a new trial for a clear abuse of discretion. Id.;
United States v. Fowler, 735 F.2d 823, 830 (5th Cir. 1984). The
trial court denied the defendants' motion in part on its finding
that Hathcock was not a credible witness. The court cited
inconsistency in Hathcock's testimony, as well as what the court
found to be misrepresentations about a prior relationship between
Hathcock and Webster's attorney. Overall, the court found that
Hathcock's testimony failed to raise a colorable claim of
incompetence regarding McGill.
6
The defendants spend much of their argument attempting to
show that the district court's finding regarding Hathcock's
credibility was wrong. Their efforts are misdirected. They do
not show even that the finding was clearly erroneous, let alone
an abuse of discretion. In fact, the testimony of every other
witness at the post-trial hearings dealt with Hathcock's
credibility. Determinations of credibility fall clearly within
the peculiar competence of the district court. We certainly
cannot say that such a determination constitutes an abuse of
discretion.
Both parties argue heatedly over whether Hathcock should be
considered a "non-juror" for the purposes of Fed. R. Evid.
606(b), which prohibits testimony by a juror "as to any matter or
statement occurring during the course of the jury's deliberations
or to the effect of anything upon that juror or any other juror's
mind or emotions as influencing the juror to assent to or dissent
from the verdict or indictment or concerning the juror's mental
processes in connection therewith." In Tanner v. United States,
483 U.S. 107, 117 (1987), the Supreme Court noted that exceptions
to this rule were recognized only when extraneous influences were
brought to bear on the jury.1 This created a distinction between
internal and external influences; juror testimony about internal
1
In fact, Tanner did not reach the question of whether such
exceptions actually exist. Instead, the Court merely assumed
that the Rule left open the possibility that it had incorporated
the common law exception. Since the exception was inapplicable
in the Tanner case, the Court did not conclusively decide the
question.
7
effects would be prohibited by the Rule, while testimony could be
heard regarding external influences.
In Tanner, the Court noted that "[c]ourts wisely have
treated allegations of a juror's inability to hear or comprehend
at trial as an internal matter." Tanner, 483 U.S. at 118 (citing
Government of Virgin Islands v. Nicholas, 759 F.2d 1073 (3d Cir.
1985); Davis v. United States, 47 F.2d 1071 (5th Cir. 1931)). We
applied the Tanner rule in Weaver v. Puckett, 896 F.2d 126, 128
(5th Cir.), cert. denied, 111 S. Ct. 427 (1990). In Weaver we
noted that, in order to initiate any post-verdict inquiry into an
internal matter regarding a juror, an "'extremely strong showing'
of juror incompetence" must be adduced, and "substantial evidence
of incompetence must originate in a non-juror source . . . ."
Id.
In this case, the district court noted the Weaver standard
and found that the evidence presented by the defendants did not
constitute the requisite "extremely strong showing" of juror
incompetence. This finding is consistent with the court's
credibility determination, noted earlier. We need not decide the
question whether Hathcock should be considered a non-juror source
for the purposes of Rule 606. The district court's decision
noted, and we agree, that even if Hathcock were considered a non-
juror, his testimony (especially in the light of the district
court's credibility determination) did not meet the high standard
required for the court to continue its investigation by
questioning jurors.
8
B. Webster's Motion to Suppress
Webster filed a motion to suppress evidence resulting from a
search of his residence based on a warrant dated July 11, 1990.
He alleged that the information on which the search warrant was
issued was stale, and that there was a lack of probable cause for
the search warrant.2 The warrant was issued based on a deputy
sheriff's affidavit, which described a number of arrests, police
surveillance, and informants' observations regarding Webster
between 1984 and 1990.
Webster cites United States v. Freeman, 685 F.2d 942 (5th
Cir. 1982), for the proposition that items such as drug caches
and paraphernalia are more sensitive to staleness than items such
as documentary records. Id. at 951. Webster alleges that the
only statement in the affidavit concerning the location of
controlled substances or paraphernalia at Webster's residence was
an assertion that a confidential informant bought drugs from
Webster at his residence on two unspecified dates in 1988. Even
2
Nelson joined in Webster's motion to suppress. Nelson
concedes that he does not have Fourth Amendment standing to move
for suppression of evidence based on a search warrant for
Webster's residence. United States v. Tolliver, 780 F.2d 1177,
1184-85 (5th Cir. 1986), vacated on other grounds, 479 U.S. 1074
(1987). He argues, however, that his Fifth Amendment right to a
fair trial was infringed by the introduction of improperly
obtained evidence. United States v. Merkt, 764 F.2d 266 (5th Cir
1985). The government argues that Merkt stands only for the
proposition that evidence may be excluded if it was obtained in
violation of a non-defendant's Fifth Amendment right, and that it
should not be extended to cover alleged violations of a co-
defendant's Fourth Amendment rights. Since we agree with the
district court that the search was conducted in good-faith
reliance on the warrant, we do not reach the question of Nelson's
standing.
9
assuming the dates were in late 1988, Webster argues, more than
18 months had passed before the search warrant was issued.3
We engage in a two-step review of the trial court's denial
of Webster's motion to suppress. The first step requires us to
decide whether the good-faith exception to the exclusionary rule
applies. United States v. Craig, 861 F.2d 818, 820-21 (5th Cir.
1988); United States v. Leon, 468 U.S. 897 (1984). If the good-
faith exception applies, we need not reach the question of
probable cause. Craig, 861 F.2d at 820-21.
The magistrate relied on United States v. Mueller, 902 F.2d
336, 340 (5th Cir. 1990), for a statement of the four exceptions
to the good-faith doctrine.4 The magistrate found that none of
these exceptions applied, and therefore that the good-faith
doctrine rendered the officers' reliance on the warrant
reasonable and justified. Of the four exceptions, Webster only
contends that one (affidavit so lacking in indicia of probable
cause as to render official belief in its existence entirely
3
In addition to the staleness claim, Webster argues that no
probable cause existed for the issuance of a search warrant to
seize records, documents, and correspondence relating to gambling
paraphernalia. Since we find that the officers' good-faith
reliance on the warrant was reasonable and justified, we do not
reach the question of probable cause.
4
(1) If the issuing magistrate/judge was misled by
information in an affidavit that the affiant knew was false or
would have known except for reckless disregard of the truth; (2)
where the issuing magistrate/judge wholly abandoned his or her
judicial role; (3) where the warrant is based on an affidavit so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable; and (4) where the warrant
is so facially deficient in failing to particularize the place to
be searched or the things to be seized that the executing
officers cannot reasonably presume it to be valid.
10
unreasonable) applies to this case. He contends that the
staleness of the information in the affidavit requires
application of this exception to the good-faith rule. Given the
long-standing evidence of Webster's drug-trafficking activity,
the government argues that the officers' reliance on the warrant
was reasonable. United States v. Webster, 734 F.2d 1048, 1056
(5th Cir.), cert. denied, 469 U.S. 1073 (1984).
Webster characterizes the affidavit too narrowly. The
affidavit alleged the existence, based on numerous sources of
information, of a "long-standing, ongoing pattern of criminal
activity . . . ." Webster, 734 F.2d at 1056. The affidavit
included allegations of drug sales at the Cotton Club and
adjacent buildings, as well as at Webster's residence. These
allegations included drug sales within one or two weeks prior to
the warrant's issuance. The fact that some of these sales took
place at locations other than Webster's residence is not
determinative. The affidavit alleged that, based on the
officer's experience, drug dealers and traffickers commonly keep
caches of drugs, as well as paraphernalia and records of drug
transactions, in their residences. In other words, the basis for
searching Webster's residence was his overall drug trafficking
and sales activity, not just those sales that actually took place
at his residence.
Similarly, although the transactions on which the money-
laundering allegations were based were initiated more than a year
prior to the warrant's issuance, the affidavit alleged that cash
11
payments had been made as recently as one month prior to the date
of the warrant. Based on the "laminated total" of available
facts, Craig, 861 F.2d at 821, it seems clear that the officers'
reliance on the warrant was reasonable, especially given the
allegations of long-standing, ongoing criminal activity. Cf.
Webster, 734 F.2d at 1056. Since the officers' good-faith
reliance on the warrant was justified, we do not reach the issue
of probable cause. Craig, 861 F.2d at 821.
C. Sufficiency of the Evidence
Webster and Nelson challenge the sufficiency of the evidence
to convict them on the conspiracy count. Webster further argues
that the evidence was insufficient to convict him of the money
laundering counts and the firearm count.
On a challenge of insufficient evidence, we review the
evidence presented at trial in the light most favorable to the
guilty verdict. United States v. Nixon, 816 F.2d 1022, 1029 (5th
Cir. 1987), cert. denied, 484 U.S. 1026 (1988). The standard of
review is whether any rational trier of fact could have found the
essential elements beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
1. Conspiracy count
Both Webster and Nelson contend that the evidence was
insufficient to support the jury's verdict on the conspiracy
count with which both were charged. Both defendants timely moved
for acquittal at the close of the government's case and renewed
their motions at the close of the evidence. They argue that the
12
evidence presented at trial did not prove the elements of the
charged conspiracy beyond a reasonable doubt.
The defendants concede that the evidence showed that both
had possessed and sold drugs, and that each had referred clients
to the other. They argue, however, that the government did not
present evidence of an actual agreement or conspiracy between the
two, and that the only evidence presented was of isolated drug
transactions engaged in by one or the other defendant. They
contend that the rental arrangement between Webster and Nelson
was a legitimate business arrangement which explains their
association and their proximity to one another at various times.
They also argue that merely referring a willing buyer to a
willing seller does not prove the existence of a conspiracy. See
United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985).
The elements of the crime of conspiracy include (1) that a
common agreement or conspiracy existed, (2) that the accused knew
of the conspiracy, and (3) that the accused, with knowledge,
voluntarily joined the conspiracy. United States v. Elam, 678
F.2d 1234, 1245 (5th Cir. 1982). It is not necessary that the
members of a conspiracy work together on every transaction. Id.
at 1247. The government need not prove the existence of the
agreement by direct evidence; it may rely on circumstantial
evidence. United States v. Bankston, 603 F.2d 528, 531 (5th Cir.
1979). The evidence, viewed in the light most favorable to the
verdict, showed that the defendants sold drugs in each others'
presence; that they consistently referred buyers to one another;
13
that they sold drugs stored in the same cache; that when one was
selling from the cache, the other would come over to get drugs
from the bag to sell; that if one needed to sell a drug that he
did not have, he would obtain it from the other; and that one
honored the other's volume discount. This evidence is clearly
sufficient for a jury to infer the existence of a conspiracy
between the defendants.
2. Money laundering counts
Webster also argues that the evidence was insufficient to
convict him on the money laundering counts. He concedes that he
made the cash purchases that represent the bases for the money
laundering counts. He contends, however, that the jury's
findings on the money laundering counts are unsupported because
defense witnesses testified that they saw Webster gambling and
winning "substantial sums of money in the thousands of dollars."
At trial the government presented evidence of drug sales and
of Webster's legitimate cash income, which the government
contended was insufficient to support the amount of cash payments
he made. Evidence of a differential between legitimate income
and cash outflow is sufficient for a money-laundering conviction,
even when the defendant claims income from additional sources.
United States v. Jackson, 935 F.2d 832, 839-42 (7th Cir. 1991).
The evidence in this case conforms to the Jackson standard.
Webster also argues that the district court improperly
admitted opinion testimony by IRS agent Metzler, who testified
that Webster's unexplained cash receipts were evidence of income
14
from narcotic sales and from illegal gambling. Webster contends
that this amounted to testimony on an ultimate issue to be
decided by the trier of fact, in violation of Fed. R. Evid. 704.
Rule 704(a) states that "testimony in the form of an opinion
or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact."
Fed. R. Evid. 704(a) (emphasis added). The only exception to
Rule 704's allowance of expert testimony on ultimate issues is:
No expert witness testifying with respect to the mental
state or condition of a defendant in a criminal case may
state an opinion or inference as to whether the defendant
did or did not have the mental state or condition
constituting an element of the crime charged or of a defense
thereto.
Fed. R. Evid. 704(b). Since Metzler did not testify as to
Webster's mental state or condition, his testimony was admissible
under Rule 704. Webster's argument to the contrary is no more
than an exhortation to disregard the clear language of the Rule.
3. Firearm Count
Webster concedes that a Ruger .357 magnum revolver was
seized from a 1979 Cadillac in which he was sitting during an
October 1988 search. The gun was found in a tupperware box that
also contained 55.47 grams of cocaine. Webster argues that the
record does not reflect any evidence as to the amount of cocaine
consistent with personal use, and that therefore the government
did not prove that the firearm had been used or carried during
and in relation to a drug trafficking offense. Contrary to
Webster's assertion, however, DEA special agent Watson testified
that possession of 24 grams of cocaine was inconsistent with
15
personal use. The record supports Webster's conviction on the
firearm count.
D. Sentencing Guidelines Issues
Webster and Nelson both argue that the district court erred
in overruling their objections to their presentence reports
(PSRs). They objected to the PSRs' findings attributing over two
kilograms of cocaine to them during the course of the conspiracy.
Nelson also challenges the district court's enhancement of his
sentencing level for possession of a firearm during the
commission of the offense.
We review factual findings under the sentencing guidelines
for clear error. United States v. Buenrostro, 868 F.2d 135, 137
(5th Cir. 1989), cert. denied, 495 U.S. 923 (1990). We must
uphold a sentence imposed under the guidelines unless it was
imposed in violation of law, or was imposed as a result of an
incorrect application of the sentencing guidelines, or was
outside the range of the applicable guideline and is
unreasonable. Id. at 136.
1. Attribution of drug quantity
Webster and Nelson argue that the district court erred in
overruling their objections to the PSRs, which attributed more
than two kilograms of cocaine to them during the conspiracy.
They contend that the district court failed to make a specific
finding that each defendant knew or reasonably should have
foreseen the involvement of any particular quantity of drugs.
16
The district court must make a specific finding of the
amount that each conspirator knew or should have known or
foreseen was involved in the conspiracy. United States v. Puma,
937 F.2d 151, 159-60 (5th Cir. 1991), cert. denied, 112 S. Ct.
1165 (1992). Puma held that a conviction for conspiracy does not
automatically mean that every conspirator could have foreseen the
total quantity of drugs involved in the entire conspiracy.
The record in this case does not include the defendants'
objections to the PSRs, but the transcript of the sentencing
hearing does record the exchanges between the judge and defense
lawyers regarding the written objections to the PSRs. Both
defendants objected to the PSRs' attribution of more than two
kilograms of cocaine to each defendant.
Nelson's PSR states that "the evidence presented during the
trial, along with the physical evidence seized by federal
authorities, supports a conservative total figure of more then
two kilos of cocaine, or its equivalent, dispersed by the
defendants during the course of the conspiracy." This language
indicates that the PSR took into account the drug sales of both
defendants without determining the amount either one of them knew
or reasonably should have foreseen. Webster's PSR states only
that "[t]he offense of conviction involves at least two kilograms
of cocaine, or its equivalent, according to the Government." The
"offense of conviction" was conspiracy. Neither PSR states that
either defendant knew or reasonably should have foreseen the
amount of drugs involved in the entire conspiracy.
17
At the sentencing hearing, the judge overruled Webster's
objection, stating "the finding [in the PSR] is supported by the
evidence, and the Court makes the same finding." She also
overruled Nelson's objection, stating, "I will find that that is
an accurate estimate of the drugs involved." Neither response
addressed the question whether each defendant knew or reasonably
should have foreseen the amount of drugs involved in the entire
conspiracy.
Rule 32(c)(3)(D) requires that the sentencing court make a
finding resolving each controverted matter in the PSR. Fed. R.
Crim. P. 32(c)(3)(D). While it is true that the sentencing court
may satisfy this requirement by rejecting a defendant's objection
and orally adopting the PSR's finding, see Puma, 937 F.2d at 155,
here neither the district court nor the PSR specifically
addressed the particular question at issue.
The government argues that Webster and Nelson were involved
in a close-knit conspiracy and that each should have known the
amount of drugs attributable to the conspiracy. The government
also seeks to distinguish Puma from this case on its facts. In
Puma, the defendant was involved in the conspiracy at a much
lower level than the leaders of the conspiracy. Puma, 937 F.2d
at 154. The government contends that the evidence here points to
a close conspiracy in which Webster and Nelson shared a drug
cache. Given the nature of the conspiracy, it argues, there was
no need for separate findings for each defendant.
18
While the government's arguments are plausible, we emphasize
that the district court did not address this problem below. We
decline to consider this factual issue for the first time on
appeal. Instead, we vacate the sentences and remand to the
district court for a determination of the amount of drugs
properly attributable to each defendant under the guidelines. Of
course, we express no opinion on the outcome of this issue.
2. Weapon enhancement
Nelson argues that the district court improperly enhanced
his sentencing level by two points for possession of a firearm
during the commission of the offense. See U.S.S.G.
§ 2D1.1(b)(1). Nelson objected to the increase in the PSI, and
submitted evidence at the sentencing hearing. The district court
overruled Nelson's objection and found "it is clear that there
was a connection between [the firearm] and the drug transaction
. . . ." Nelson contends that there was no evidence showing that
the firearm was possessed during the conspiracy.
The .22 caliber firearm was found during a search of the
Cotton Club in December 1988. Nelson offered testimony at the
sentencing hearing that the firearm was located on a shelf behind
a stack of dinner plates in the kitchen area, and that, in order
to retrieve it, one would have to reach behind the stacked plates
and possibly knock them over. The testimony also indicated that
Nelson was holding the weapon as collateral on a loan of money
Nelson made to the owner of a firearm.
19
We review the district court's factfinding, connecting the
weapon to a drug-related offense, only for clear error. 18
U.S.C. § 3742(e). Once it is established that a firearm was
present during the offense, the district court should apply the
enhancement unless it is clearly improbable that the weapon was
connected with the offense. U.S.S.G. § 2D1.1, comment. (n.3).
Possession need only be established by a preponderance of the
evidence. United States v. Casto, 889 F.2d 562, 570 (5th Cir.
1989). Given these standards, we cannot say that the district
court's finding was clearly erroneous.
III. CONCLUSION
The district court's denial of a new trial was not an abuse
of discretion, since there was not an "extremely strong showing"
of juror incompetence. The district court's denial of Webster's
motion to suppress was correct. The evidence was sufficient to
support the jury's verdict on all counts. We therefore AFFIRM
the convictions of both defendants. Since the district court did
not consider the question whether each defendant should be held
to have known or reasonably to have foreseen that the conspiracy
involved more than two kilograms of cocaine, we VACATE the
sentences of both defendants and REMAND for further proceedings.
Convictions AFFIRMED; sentences VACATED and REMANDED.
20