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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 90-1957
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN GLENN NEAL, RICKY CLYDE
DUNCAN, LESLIE RAYMOND JONES,
CLIFFORD P. SUTHERLAND, JAMES
GLEN PACE, EVELYN AUSTIN
GRAHAM, TIMOTHY WADE GREEN,
JACKY RONALD PACE, GILBERT D.
SMITH, JIMMY WAYNE JOYCE,
Defendants-Appellants.
__________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
__________________________________________________
(July 21, 1994)
Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendants Jacky Ronald Pace, James Glen Pace, Melvin Glenn
Neal, Ricky Clyde Duncan, Leslie Raymond Jones, Clifford P.
Sutherland, Evelyn Austin Graham, Timothy Wade Green, Gilbert D.
Smith, and Jimmy Wayne Joyce ("the Defendants") were jointly tried
and convicted of various offenses stemming from a conspiracy to
manufacture, possess, and distribute amphetamine. All ten
defendants were convicted of conspiring to manufacture, distribute,

or possess with intent to distribute a controlled substance, in
violation of 21 U.S.C. งง 841(a)(1) and 846 (1988).1 All ten
defendants now appeal their convictions. We affirm in part, vacate
in part, and remand in part.
I
In 1984 and 1985, Jacky Pace operated an extensive conspiracy
to distribute amphetamine. At varying points throughout the
conspiracy's existence, Pace recruited the other Defendants into
his organization.2 Pace also established a network of phony
corporations ("the JRP group") to purchase the chemicals and
equipment necessary to manufacture amphetamine and to launder the
1
Additionally, the jury found Jacky Pace guilty of one
count of aiding and abetting the manufacture of amphetamine, in
violation of 21 U.S.C. งง 841(a)(1) and 2; one count of engaging
in a continuing criminal enterprise, in violation of 21 U.S.C.
ง 848; multiple counts of investing income derived from a drug
conspiracy, in violation of 21 U.S.C. ง 854; one count of aiding
and abetting interstate travel in furtherance of a drug conspiracy,
in violation of 18 U.S.C. งง 1952 and 2; and one count of
conspiring to impede the Internal Revenue Service, in violation of
18 U.S.C. ง 371. James Glen Pace was convicted of multiple counts
of investing income derived from a drug conspiracy, one count of
conspiring to impede the Internal Revenue Service, and one count of
using a communication facility to facilitate the conspiracy to
manufacture amphetamine, in violation of 21 U.S.C. ง 843(b). Neal
was found guilty of engaging in a continuing criminal enterprise,
multiple counts of investing income derived from a drug conspiracy,
and conspiring to impede the Internal Revenue Service. The jury
convicted Duncan of engaging in a continuing criminal enterprise,
investing income derived from a drug conspiracy, aiding and
abetting interstate travel in furtherance of a drug conspiracy, and
conspiring to impede the Internal Revenue Service. Smith was found
guilty of five counts of investing income derived from a drug
conspiracy and one count of aiding and abetting interstate travel
in furtherance of a drug conspiracy.
2
Only defendants Glen Pace and Smith challenge their
convictions on sufficiency grounds.
-2-

money he received from his amphetamine operations. Agents of the
Drug Enforcement Administration ("DEA") and the Texas Department of
Public Safety ("TDPS") apparently learned of Pace's involvement in
the amphetamine trade through surveillance of Metroplex Chemicals,
a Dallas business that supplied chemicals and glassware to
amphetamine manufacturers.
In June 1987, the government brought a forty-three count
indictment charging thirty-one persons with various offenses
arising out of their participation in Pace's amphetamine
distribution ring. The case proceeded to trial in May 1989, but
the district court declared a mistrial because of excessive
publicity. In October 1989, the case again proceeded to trial, and
the jury returned with its guilty verdicts in September 1990.
II
The Defendants first argue that their Fifth Amendment rights
to due process were violated by the excessive delay between the
occurrence of the last overt act taken in furtherance of the
conspiracy and the bringing of the indictment. The Due Process
Clause of the Fifth Amendment protects an accused against
preindictment delay. United States v. Lovasco, 431 U.S. 783, 97 S.
Ct. 2044, 52 L. Ed. 2d 752 (1977). To prove a due process
violation, the Defendants must demonstrate both that the prosecutor
intentionally delayed the indictment to gain a tactical advantage
and that the Defendants incurred actual prejudice as a result of
the delay. United States v. Delario, 912 F.2d 766, 769 (5th Cir.
-3-

1990); United States v. Amuny, 767 F.2d 1113, 1119 (5th Cir.
1985). Because the Defendants have not attempted to demonstrate
that actual prejudice resulted from the delay,3 and because the
record does not support a claim of prejudice, we conclude that the
pre-indictment delay did not violate the Defendants' due process
rights. See United States v. Harrison, 918 F.2d 469, 474 (5th Cir.
1990) (noting that vague assertions of lost witnesses, failed
memories, and missing records do not demonstrate actual prejudice).
III
A
The Defendants next contend that the district court erred in
denying their motions to dismiss based upon alleged violations of
the Speedy Trial Act. The Act requires that a federal criminal
defendant be tried within seventy days of his indictment or
appearance in front of a judicial officer, whichever is later. 18
U.S.C. ง 3161(c)(1). If the Act is violated, the indictment must
be dismissed. However, the Act provides for a number of
exclusions))time that is not charged against the seventy-day clock.
See 18 U.S.C. ง 3161(h); United States v. Williams, 12 F.3d 452,
3
Glen Pace alleges that the loss of witnesses Herbert
Wassom and Roy Pace prejudiced his defense. However, were we to
find Pace's speculative assertion sufficient to demonstrate actual
prejudice, Pace has not refuted the government's contention that
the delay was necessary for investigative purposes. Thus, Pace has
not demonstrated that the government intentionally delayed the
indictment to gain a tactical advantage. See Lovasco, 431 U.S. at
796, 97 S. Ct. at 2052 (prosecuting "a defendant following
investigative delay does not deprive him of due process, even if
his defense might have been somewhat prejudiced by the lapse of
time").
-4-

459 (5th Cir. 1994). It is the Defendants' burden to demonstrate
that a violation of the Act occurred. 18 U.S.C. ง 3162(a)(2).
Here, the Act's clock began to run on November 16, 1987, the
day the last defendant appeared before a judicial officer. United
States v. Welch, 810 F.2d 485, 488 n.1 (5th Cir. 1987)
("[D]efendants who are joined for trial generally fall within the
speedy trial computation of the latest defendant."). At that time,
several Defendants already had filed pretrial motions, and pretrial
motions of some type remained pending until May 3, 1989.4 Thus,
the trial clock was tolled during that entire time period.5 See
4
The Act provides for the exclusion of "[a]ny period of
delay resulting from other proceedings concerning the defendant,
including . . . delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion . . . ." 18 U.S.C.
ง 3161(h)(1)(F). Here, the Defendants attack the exclusion of time
during which motions were pending as unjustified. Nonetheless, the
Act is "all but absolute" in excluding time during which motions
are pending. United States v. Walker, 960 F.2d 409, 413 (5th
Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 443, 121 L. Ed. 2d
362 (1992); United States v. Horton, 705 F.2d 1414, 1416 (5th
Cir.), cert. denied, 464 U.S. 997, 104 S. Ct. 496, 78 L. Ed. 2d 689
(1983). Moreover, the Defendants have failed to demonstrate that
this a particularly egregious case justifying an exception to the
Act's command. See Horton, 705 F.2d at 1416 (noting that an
exception might be justified where the defendant has presented
"repeated unsuccessful requests for hearing or other credible
indication that a hearing had been deliberately refused with intent
to evade the sanctions of the Act").
5
We further note that Joyce and another defendant filed a
motion for continuance, which the district court, based upon its
finding that the ends of justice so required, granted on January
25, 1988. See 18 U.S.C. ง 3161(h)(8)(A) (excluding any period of
delay resulting from a continuance granted on the basis of the
court's finding that the continuance served the "ends of justice").
Two days later, the court set the case for trial on September 7,
1988. On September 1, however, the district court again granted a
continuance based upon the ends-of-justice analysis. On October 4,
-5-

Walker, 960 F.2d at 414 ("Delays resulting from pre-trial motions
will toll the trial clock indefinitely; there is no independent
requirement that the delay attributable to the motions be
reasonable.") (internal quotations omitted). Additional pretrial
motions were filed on May 10 and were pending until May 15, when
the trial began. Thus, from November 16, 1987 until May 15, 1989,
less than one week ran on the Act's seventy-day clock.
On May 18, the district court declared a mistrial, thereby
resetting the trial clock to zero. 18 U.S.C. ง 3161(e). On the
same day, Jacky Pace filed a motion seeking an examination to
determine his competency. Thus, the period from May 18 until
August 25))when Pace was found competent to stand trial))must be
excluded. 18 U.S.C. ง 3161(h)(1)(A). Moreover, pretrial motions
filed by several Defendants were pending until September 20. Thus,
only four days had run from the clock when the Defendants' second
trial began on September 25. Consequently, no violation of the
Speedy Trial Act occurred.
B
The Defendants also allege a violation of the Sixth Amendment.
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
. . . trial." The right to a speedy trial "attaches at the time of
arrest or indictment, whichever comes first, and continues until
the date of trial." United States v. Garcia, 995 F.2d 556, 560
the court set a new trial date of May 1, 1989.
-6-

(5th Cir. 1993). In resolving a constitutional speedy-trial claim,
we must examine: (1) the length of the delay, (2) the reason for
the delay, (3) when the defendant asserted his speedy trial rights,
and (4) any prejudice to the defendant resulting from the delay.6
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972). Here, the government concedes both that the two-year delay
at issue is "presumptively prejudicial" under the first prong of
the test and that several of the Defendants asserted their speedy-
trial rights "early and fairly often." Therefore, we must balance
those factors against the remaining two factors of the Barker test.
In examining the reasons for the delay, we must heed the
Supreme Court's warning that "pretrial delay is often both
inevitable and wholly justifiable." Doggett v. United States, ___
U.S. ___, 112 S. Ct. 2686, 2693, 120 L. Ed. 2d 520 (1992). This
principle is particularly appropriate here, where much of the delay
was occasioned by the Defendants' pretrial motions, requests for
continuances, and motions for competency examinations.7 See United
States v. Jernigan, 20 F.3d 621, 622 (5th Cir. 1994). Moreover, in
light of the extremely complex factual nature of the case and the
6
In assessing prejudice, we must look to the policies
underlying the Sixth Amendment's guarantee of a speedy trial: "(i)
preventing oppressive pretrial incarceration; (ii) minimizing a
defendant's anxiety and concern; and (iii) assuring that a delay
does not impair the defense." Garcia, 995 F.2d at 560.
7
We note that Joyce sought a continuance as late as May
13, 1989, which the district court denied.
-7-

difficulties involved with such a large trial,8 a sixteen month
delay between indictment and trial))or twenty-four months between
indictment and the start of the second trial))is not unreasonable.
Finally, we must note that the Defendants have not demonstrated
that "the [g]overnment . . . intentionally held back in its
prosecution . . . to gain some impermissible advantage at trial."
Doggett, 112 S. Ct. at 2693.
We also must weigh the fourth factor))whether the Defendants
suffered any prejudice as a result of the delay))against the
Defendants. Although affirmative proof of particularized prejudice
is not essential to every speedy trial claim, id. at 2692, the
Defendants have alleged neither that they were subjected to
excessive pretrial incarceration nor that they were anxious or
concerned while awaiting trial. See Garcia, 995 F.2d at 561.
Moreover, the Defendants))excluding Glen Pace))have not attempted
to demonstrate that the delay impaired their defense. Thus, we
reject the Defendants' contention that their constitutional right
to a speedy trial was violated. See Doggett, 112 S. Ct. at 2692
(noting that a constitutional violation is not made out if the
defendant cannot show specific prejudice and the government acted
reasonably under the circumstances).
8
The Defendants contend that we should weigh any delay
caused by the number of defendants against the government due to
the government's desire to "bring[] a mega show trial." However,
the Defendants concede that initial joinder was proper.
-8-

Glen Pace argues that, as a result of the delay, "he lost his
opportunity to present evidence as two witnesses died and his army
records were lost." Pace, however, has failed to demonstrate that
the allegedly lost evidence impaired his defense to any significant
degree. For example, he has not adequately explained either why
the facts to which the lost witnesses would have testified could
not have been elicited from other witnesses or what relevance his
lost army records had to the issues of this case. Moreover, he has
not explained why neither he nor his attorney took steps to
preserve the witnesses' testimony for trial. See Robinson v.
Whitley, 2 F.3d 562, 571 (5th Cir. 1993), cert. denied, ___ U.S.
___, 114 S. Ct. 1197, 127 L. Ed. 2d 546 (1994). Consequently, we
must reject Glen Pace's claim of a speedy-trial violation.
IV
The Defendants contend that significant portions of the
transcript have been, or possibly could have been, omitted, thus
precluding appellate counsel from examining the record for possible
errors. They further argue that the trial transcript is so
inaccurate as to render it unreliable for the purpose of appellate
review. Thus, the Defendants contend that we should reverse the
judgment of the district court and remand for a new trial.
A
A criminal defendant has a right to a record on appeal that
includes a complete transcript of the proceedings at trial. United
States v. Margetis, 975 F.2d 1175, 1176 (5th Cir. 1992); United
-9-

States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977). Where a
portion of the transcript is missing and the defendant is
represented by the same attorney at trial and on appeal, reversal
is required only if the defendant can "show that failure to record
and preserve the specific portion of the trial proceedings visits
a hardship upon him and prejudices his appeal." Selva, 559 F.2d at
1305. However, "[w]hen . . . a criminal defendant is represented
on appeal by counsel other than the attorney at trial, the absence
of a substantial and significant portion of the record, even absent
any showing of specific prejudice or error, is sufficient to
mandate reversal." Id. at 1306 (footnote omitted); see also
Margetis, 975 F.2d at 1177. Here, using either standard of
review,9 the allegedly omitted portions of the transcript are
neither significant nor substantial.10 See Selva, 559 F.2d at 1306
n.5 (noting that "a merely technically incomplete record . . . will
not be sufficient to work a reversal"). Therefore, we find the
9
On appeal, Jones, Neal, Joyce, and Duncan are represented
by new counsel.
10
For example, it is undisputed that the transcript
inaccurately reports that the district court, in response to a
defense objection to the admission of certain evidence, stated,
"You ain't going to be putting the evidence in by me, buster." The
Defendants therefore contend that "whatever explanation [the court]
may have offered as to why he admitted the evidence . . . is
missing." However, the transcript relates that the district court
admitted the challenged evidence "because it was made from the
[witness's] knowledge. It was a summary and I don't want to argue
about it. It's admitted."
-10-

Defendants' claim of error to be without merit.11 See United States
v. Pace, 10 F.3d 1106, 1124-25 (5th Cir. 1993).
B
The Defendants next allege that the transcript is unreasonably
inaccurate. A transcript need not be correct in every detail.
Instead, it need only "report the proceedings with reasonable
completeness and substantial accuracy." United States v. Anzalone,
886 F.2d 229, 232 (9th Cir. 1989). We now have before us what has
been accepted by the trial court as an accurate transcript.
"`[T]hat determination, absent a showing of intentional
falsification or plain unreasonableness, is conclusive.'"
Margetis, 975 F.2d at 1177 (quoting United States v. Mori, 444 F.2d
240 (5th Cir.), cert. denied, 404 U.S. 913, 92 S. Ct. 238, 30 L.
Ed. 2d 187 (1971)); see Fed. R. App. P. 10(e). As the Defendants
do not allege, and have not demonstrated,
intentional
falsification, we must examine the transcript and determine whether
the district court's decision to certify it as accurate is plainly
unreasonable.
The Defendants correctly note the district court's finding
that the more-than-150-volume transcript contained over 300 errors.
After reviewing the transcript, however, we agree with the
government's position that these errors, most of which were
11
Glen Pace alleges that testimony given in camera by Jacky
Pace regarding the testimony that Jacky would have given had Glen
Pace's trial been severed from his own is not included in the
record on appeal. That assertion is incorrect. See part V.C.
infra.
-11-

corrected to the parties' satisfaction by the district judge, were
primarily of a typographical nature.12 Thus, the Defendants have
wholly failed to demonstrate that the transcript is unreasonably
incomplete or substantially inaccurate. Finally, the Defendants
have not demonstrated that any errors in the transcript have caused
them specific prejudice, and we do not believe that our review of
the claims raised on appeal is impeded in any way by the relatively
minor inaccuracies cited by the Defendants.
V
The Defendants13 contend that the district court erred in
denying their respective motions for severance.14 Denial of a
motion for severance is reviewable only for an abuse of
discretion.15 See Zafiro v. United States, ___ U.S. ___, 113 S. Ct.
12
For example, volumes 82 and 88 of the record on appeal,
although purporting to transcribe the same proceeding, contain
different language. However, as even the Defendants admit, the
cited volumes are "quite similar," and we do not see how the de
minimis
discrepancies
render
the
transcript
unreasonably
inaccurate.
13
In this section, "the Defendants" excludes Jacky Pace.
14
Fed. R. Crim. P. 14 provides:
If it appears that a defendant or the government is
prejudiced by a joinder of . . . defendants . . . for
trial together, the court may order an election or
separate trials of counts, grant a severance of
defendants or provide whatever other relief justice
requires.
15
Although we have expressed serious concerns regarding
criminal megatrials, United States v. Ellender, 947 F.2d 748, 754
(5th Cir. 1991), "[m]ere generalized criticism of megatrials [by
defendants] generally will not withstand the rigorous standard of
review for denial of severance." Id. at 755.
-12-

933, 939, 122 L. Ed. 2d 317 (1993); United States v. Arzola-Amaya,
867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.
Ct. 322, 107 L. Ed. 2d 312 (1989). In reviewing the district
court's decision not to grant severance, we must remember the
general rule "that persons indicted together should be tried
together, especially in conspiracy cases."16 United States v.
Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied, ___ U.S. ___,
114 S. Ct. 266, 126 L. Ed. 2d 218 (1993). Therefore, "when
defendants properly have been joined under Rule 8(b), a district
court should grant a severance only if there is a serious risk that
a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt." Zafiro, 113 S. Ct. at 938; see also United States
v. Buckhalter, 986 F.2d 875, 876 (5th Cir. 1993) (defendant must
demonstrate compelling prejudice that outweighs "the government's
interest in economy of judicial administration"), cert. denied, ___
U.S. ___, 114 S. Ct. 203, 126 L. Ed. 2d 160 (1993); Arzola-Amaya,
867 F.2d at 1516 ("Reversal is warranted only when the [defendant]
can demonstrate compelling prejudice against which the trial court
is unable to afford protection.").
A
Several Defendants allege that they were entitled to severance
because their involvement in the conspiracy was extremely limited.
16
Thus, the Defendants agree that joinder initially was
proper. See Fed. R. Crim. P. 8(b).
-13-

These Defendants also contend that the reputations of certain
codefendants and evidence of their past crimes created a
prejudicial spillover effect. However, a quantitative disparity in
the evidence "is clearly insufficient in itself to justify
severance." United States v. Harrelson, 754 F.2d 1153, 1175 (5th
Cir.), cert. denied, 474 U.S. 1034, 106 S. Ct. 599, 88 L. Ed. 2d
578 (1985). "Moreover, the mere presence of a spillover effect
does not ordinarily warrant severance." United States v. Sparks,
2 F.3d 574, 583 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.
Ct. 720, 126 L. Ed. 2d 684 (1994). Additionally, because the
Defendants were convicted of participating in the same conspiracy,
severance is not required merely because the government introduced
evidence admissible only against certain defendants. United States
v. Restrepo, 994 F.2d 173, 187 (5th Cir. 1993). Finally, the
jury's "not guilty" verdicts as to some defendants demonstrate that
the jurors followed the district court's instructions and
considered the evidence separately as to each defendant.17 See
Ellender, 947 F.2d at 755 ("[A]cquittals as to some defendants on
some counts support an inference that the jury sorted through the
evidence and considered each defendant and each count
separately."). Therefore, we reject the Defendants' contentions
that the disparity in evidence and the presence of a spillover
17
The jury found Neal not guilty of the criminal acts
alleged in counts 25-31; Jacky Pace not guilty of counts 3 and 41;
Glen Pace not guilty of count 5; Sutherland not guilty of counts
3, 5-31; and Smith not guilty of counts 6-26 and 43.
-14-

effect caused compelling prejudice against which the district court
was unable to provide protection. See United States v. Faulkner,
17 F.3d 745, 758-59 (5th Cir. 1994); Pofahl, 990 F.2d at 1456.
B
The Defendants next argue that severance should have been
granted because their defenses were antagonistic with the defense
presented by Jacky Pace. It is undisputed that, in some
circumstances, "mutually antagonistic" defenses may be so
prejudicial as to mandate severance. See Zafiro, 113 S. Ct. at
937. However, "[m]utually antagonistic defenses are not
prejudicial per se. Moreover, Rule 14 does not require severance
even if prejudice is shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district court's sound
discretion." Id. at 938.
To support their claim of mutually antagonistic defenses, the
Defendants point to comments made by Pace's counsel during his
opening statement indicating that Pace was guilty of manufacturing
and distributing amphetamine.18 See United States v. Romanello, 726
18
During his opening statement, Pace's counsel remarked
that Pace did "not dispute committing the acts of purchasing
chemicals, manufacturing amphetamine, and participating in the sale
of amphetamine." Continuing, counsel stated that "Jacky Pace did
precisely what [the government] said that he did in this Indictment
insofar as manufacturing and selling amphetamine." In admitting
his guilt, Pace rested his defense at trial on his claim of
outrageous government conduct. Pace argued to the jury that the
DEA tacitly consented to his activities by allowing him to
repeatedly purchase the chemicals required for manufacturing
amphetamine as part of its plan to identify the "major" drug
dealers in the Dallas-area.
-15-

F.2d 173, 179 (5th Cir. 1984) ("An accusation by counsel can state
the core of his client's defense and cast blame on the co-
defendant.").19 The Defendants contend that counsel's "damning"
statements "in effect concede[d] to the jury that a conspiracy
existed between all the defendants" and caused the jury to "infer[]
that all the defendants were indeed guilty of participating in the
conspiracy," even though they contended at trial that they had not
joined or participated in a conspiracy.20 We do not believe,
however, that the comments made by Jacky Pace's counsel indicate
19
But see United States v. Kane, 887 F.2d 568, 572 (5th
Cir. 1989) ("Any direct comment on the existence of a conspiracy
made in support of [an entrapment] defense was propounded by
counsel for [codefendant]. However, statements by counsel are not
evidence at trial . . . ."), cert. denied, 493 U.S. 1090, 110 S.
Ct. 1159, 107 L. Ed. 2d 1062 (1990).
20
The Defendants also contend that Pace's counsel referred
to the codefendants as "kingpins." We disagree. Counsel did not
refer to the codefendants as kingpins, but instead argued that the
government made Jacky Pace into an drug kingpin by allowing him to
manufacture amphetamine:
In summary we're going to try to show you that when after
lo, those many years when the DEA and other law
enforcement agencies permitted Mr. Pace's activities to
go on, that when they finally got around to indicting him
in June of '87 it was hailed as a big case for the Drug
Enforcement Administration and the United States
Attorney's Office. That's the only answer that I can
give you as to why those agents would permit that type of
activity to on, not out of ill motive, not out of ill
served sense of what their purpose is, but simply because
in their zeal to try to make the kingpins they did
indeed, ladies and gentlemen, make the kingpins. And if
Jacky Pace is a kingpin as he sits here before you
today[,] by the time this trial is over with we're going
to show you that it's because the Drug Enforcement
Administration made him that.
-16-

that the defense asserted by Pace was necessarily inconsistent with
the defense of factual innocence asserted by the other Defendants.
"Defenses are antagonistic if they are mutually exclusive or
unreconcilable, that is, if the core of one defendant's defense is
contradicted by that of another." United States v. Rojas-Martinez,
968 F.2d 415, 419 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.
Ct. 828, 121 L. Ed. 2d 698 (1992); see also Romanello, 726 F.2d at
177; United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir.
1981). Here, Jacky Pace's counsel did not directly assert that the
other defendants were guilty of conspiring to manufacture or
distribute amphetamine. Cf. Restrepo, 994 F.2d at 186 (severance
is proper if a codefendant's out-of-court statements directly
implicate the defendant). Instead, counsel admitted only that
Pace, with the government's consent, had manufactured and
distributed amphetamine. Certainly, the jury, in order to believe
the core of that defense, was not required to disbelieve the core
of the other Defendants' claims of innocence. See Kane, 887 F.2d
at 572 ("The fact that a defendant admits that he is guilty of
conspiracy [but claims the defense of entrapment] does not
necessarily create a conflict between the core of defenses with a
co-defendant who maintains that he is not a member of the
conspiracies."); United States v. Salomon, 609 F.2d 1172, 1175
(5th Cir. 1980) ("Clearly, a co-defendant's reliance on a theory of
entrapment cannot of itself justify reversing a trial court
decision not to sever."). Moreover, any risk of prejudice was
-17-

cured by the district court's limiting instructions that the jury
should both consider the evidence as to each defendant separately
and individually and not consider comments made by counsel as
substantive evidence. See United States v. Stouffer, 986 F.2d 916,
924 (5th Cir.) (similar instructions cured any risk of harm
resulting from the defendants' mutually antagonistic defenses),
cert. denied, ___ U.S. ___, 114 S. Ct. 115, 126 L. Ed. 2d 80
(1993); Kane, 887 F.2d at 572 (same).
C
The Defendants next argue that they were entitled to severance
because separate trials would have allowed the codefendants to
testify for each other. The Supreme Court has recognized that "a
defendant might suffer prejudice [from a joint trial] if essential
exculpatory evidence that would be available to a defendant tried
alone were unavailable in a joint trial." Zafiro, 113 S. Ct. at
938 (citing Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979)
(per curiam)). To prevail on such a claim, a defendant must
establish a bona fide need for the codefendant's testimony, the
substance of the testimony, the exculpatory nature and effect of
the testimony, and that the codefendant would in fact testify.
Kane, 887 F.2d at 573. Here, the Defendants))excluding Smith and
Glen Pace))merely allege that exculpatory testimony would have been
available to them had severance been granted. Therefore, the
district court properly denied their motions to sever. See Sparks,
2 F.3d at 583 & n.10 (mere assertions that codefendants would
-18-

testify for a defendant if severance is granted do not establish
grounds for severance).
Both Smith and Glen Pace, however, have demonstrated that
Jacky Pace))the undisputed leader of the conspiracy))would have
testified on their behalf had severance been granted. During the
second trial, Smith submitted an affidavit from Jacky Pace in which
Pace maintained that Smith in no way helped or participated in
Pace's amphetamine business.21 Additionally, Jacky Pace extensively
testified in camera that Glen Pace neither participated in nor in
any way intentionally furthered the amphetamine conspiracy. This
testimony, quite obviously, is essential to both Smith's and Glen
Pace's claims of innocence. Thus, both Smith and Glen Pace have
established a bona fide need for Jacky Pace's testimony, the
substance of that testimony and its exculpatory nature, and that
Jacky Pace would in fact testify. Therefore, we conclude that Glen
Pace and Smith should have been tried separately from Jacky Pace.
Consequently, we vacate their convictions and remand for a new
trial.22 See Romanello, 726 F.2d at 182.
21
Jacky Pace averred that Smith: "did not obtain or
deliver for [Pace] any glassware, chemicals or other items
necessary for producing amphetamine"; "did not sell any
amphetamine for [Pace]"; did not "commit[] any act in furtherance
of any amphetamine manufacture, sale or distribution in which
[Pace] participated"; "was not a part of the `Pace Organization'";
"did not enter into any agreement, partnership or association
. . . to manufacture, distribute or sell or to possess with intent
to distribute or sell amphetamine"; and was retained by Pace only
"as an attorney at law."
22
Thus, we find that the evidence presented below was
sufficient to support a verdict against them and need not address
-19-

VI
The Defendants argue that the district court erred in allowing
Terry Vernon, an attorney employed by Smith's law firm during 1984
and 1985, to testify in violation of the attorney-client privilege.
Vernon testified that Smith invited him to attend a meeting with
Duncan, Neal, and a bookkeeper employed by Jacky Pace. Vernon,
after reviewing the JRP-group corporate documents presented at the
meeting and talking to Duncan and Neal, informed Smith and another
attorney that, in his opinion, "this was a money laundering
operation, that is was illegal, and that he was not going to get
involved in it."23 The district court assumed that an attorney-
client relationship existed between Vernon and the Defendants, but
allowed Vernon to testify because the communication to Smith fell
within
the
"crime-fraud"
exception
to
the
privilege.24
their other individual claims of error. See Romanello, 726 F.2d at
176-77 & n.4.
23
The Defendants do not contend on appeal that Vernon's
testimony regarding the corporate structure of the JRP group or the
documents that he examined during the meeting involved privileged
communications. See Joint Brief at 70 ("The communication divulged
by Vernon in the instant case is singular: Vernon's alleged
communication to [Smith and Cordes] . . . .").
24
We note that the better route would have been for the
district court to determine first whether an attorney-client
relationship existed and, in the alternative, decide issues
involving exceptions to or waiver of the privilege. See Harrelson,
754 F.2d at 1167 (noting that a defendant asserting the privilege
"bears the burden of proving the existence of an attorney-client
relationship"); In re Grand Jury Proceedings, 517 F.2d 666, 670
(5th Cir. 1975) (To satisfy its burden, the defendant must
demonstrate that the holder of the privilege made the communication
at issue to a person acting as a lawyer for the primary purpose of
securing "either (i) an opinion on law or (ii) legal services or
-20-

Alternatively, the district court found that the Defendants waived
the privilege.25
"The application of the attorney-client privilege is a
`question of fact, to be determined in the light of the purpose of
the privilege and guided by judicial precedents.'" In re Auclair,
961 F.2d 65, 68 (5th Cir. 1992) (quoting Hodges, Grant & Kauffman
v. United States Gov't, 768 F.2d 719, 721 (5th Cir. 1985)). "The
clearly erroneous standard of review applies to the district
court's factual findings. We review the application of the
controlling law de novo." Id. at 69 (citations omitted).
Here, the district court assumed that an attorney-client
relationship existed between Vernon and the persons present at the
meeting. Where the privilege exists, it
protects communications from the client to the attorney
made in confidence for the purpose of obtaining legal
advice. It shields communications from the lawyer to the
client only to the extent that these are based on, or may
disclose, confidential information provided by the client
or contain advice or opinions of the attorney.
Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir. 1985) (citations
omitted). However, the privilege does not apply where legal
representation was secured in furtherance of intended, or present,
(iii) assistance in some legal proceeding."). We, of course,
express no view as to whether an attorney-client relationship
existed between Vernon and the Defendants.
25
The Defendants initially argue that these findings are
clearly erroneous because the district court originally ruled that
the communication at issue was privileged, but that the privilege
was waived. We find nothing erroneous, however, about the district
court's decision to clarify the record by stating the exact reasons
why it admitted the testimony in question.
-21-

continuing illegality. Harrelson, 754 F.2d at 1167; see generally
Wigmore on Evidence ง 298 (McNaughton rev. 1961). Consequently,
"once the government has made a prima facie showing that the
attorney was retained to promote intended or continuing criminal
activity, the privilege may not be asserted." Harrelson, 754 F.2d
at 1167; see also United States v. Ballard, 779 F.2d 287, 292 (5th
Cir.) (The privilege ceases "when the lawyer becomes either the
accomplice or the unwitting tool in a continuing or planned
wrongful act."), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89
L. Ed. 2d 916 (1986).
The Defendants contend that because Vernon did not communicate
to Duncan and Neal his conclusion that they were involved in
continuing illegal activity, the communication at issue was not
"made for the purpose of obtaining aid in the commission of future
criminal acts." Therefore, the Defendants conclude that the
communication cannot fall within the crime-fraud exception to the
privilege. However, the mere fact that an attorney does not agree
to participate with a client in criminal activity planned or
ongoing at the time the client solicits advice is not dispositive
regarding whether the attorney-client privilege can be invoked.
See Ballard, 779 F.2d at 292-93 (finding the crime-fraud exception
applicable where the attorney refused to participate in intended
illegality and so advised the defendant). Instead, the privilege
ends when a client consults an attorney seeking advice that will
promote intended or ongoing criminal activity. See id. at 292;
-22-

see also United States v. Dyer, 722 F.2d 174, 177 (5th Cir. 1983)
(same); United States v. Calvert, 523 F.2d 895, 909 (8th Cir.
1975) ("In applying [the crime-fraud] exception to the doctrine of
privilege, it is the client's purpose which is controlling
. . . ."), cert. denied, 424 U.S. 911, 96 S. Ct. 1106, 47 L. Ed. 2d
314 (1976). The district court specifically found that Vernon was
approached to render advice that would have aided continuing or
future illegal conduct, and this finding is amply supported by the
record. Moreover, Vernon expressed his belief))based on
information supplied by Duncan and Neal))that the JRP group
corporations were an integral part of a money-laundering scheme to
Smith, Vernon's employer and a coconspirator. Therefore, we
conclude that the district court did not err in allowing Vernon
inform the jury that he related to Smith his opinion that the JRP
group was part of a money-laundering scheme.
VII
The Defendants next assert they are entitled to reversal
because of the prosecutor's alleged misconduct. The acts of
misconduct cited by the Defendants consist of violations of
discovery rules, improper remarks during the trial, and an improper
exhibition of objects during trial that were not placed in
evidence. The Defendants further argue that the cumulative effect
of the separate acts of misconduct requires reversal. We address
each claim in turn.
-23-

A
1
The Defendants contend that the prosecution violated several
discovery orders by refusing to provide certain materials and
providing other materials after the date ordered by the district
court.26 The district court held a hearing regarding discovery
matters in December 1987 and, in late January 1988, ordered the
government to make available for inspection all physical evidence
and to provide defense counsel with a list of all relevant
26
The Defendants also contend that the prosecution's
failure, prior to trial, to produce certain reports and statements
prepared by government agents violated the Jencks Act. The Jencks
Act provides in relevant part:
After a witness called by the United States has testified
on direct examination, the court shall, on motion of the
defendant, order the United States to produce any
statement . . . of the witness in the possession of the
United States which relates to the subject matter as to
which the witness has testified. . . .
18 U.S.C. ง 3500(b) (emphasis added). Thus, the Jencks Act does
not require that the prosecution disclose such reports prior to
trial. See United States v. Campagnuolo, 592 F.2d 852, 858 (5th
Cir. 1979) (holding that a pretrial discovery order was invalid to
the extent that it allowed discovery beyond the limitations of the
Jencks Act), cited with approval in United States v. Welch, 810
F.2d 485, 489 n.2 (5th Cir. 1987).
-24-

reports.27 The prosecution filed a notice of compliance with the
court's order in April.28
Pursuant to Fed. R. Crim P. 16, which establishes the
parameters of discoverable evidentiary materials, "[t]he trial
court holds great latitude in the management of the discovery
process, including fashioning the appropriate remedy for alleged
discovery abuses." Ellender, 947 F.2d at 756. "We review alleged
errors in the administration of discovery rules for abuse of
discretion and will not reverse on the basis of such errors unless
a defendant establishes prejudice to his substantial rights."
United States v. Gonzalez, 967 F.2d 1032, 1035 (5th Cir. 1992).
We conclude that the district court did not abuse its
discretion with regard to discovery matters. A review of the
record indicates that when the Defendants notified the court of the
government's noncompliance with a discovery order or Rule 16, the
district court took appropriate action, including granting
27
Prior to the hearing, the government provided defense
counsel with access to discoverable evidence using a "discovery
room" into which it placed all tangible evidence. See United
States v. Kenny, 462 F.2d 1205, 1212 (3d Cir. 1972) (holding that
the defendants had an adequate opportunity to inspect tangible
evidence where the government simply placed it in a room open to
the defendants), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L.
Ed. 2d 176 (1972).
28
The prosecution sought additional time to comply with the
portion of court's order directing it to (1) "designate by April
18, 1988 those documents which it does not intend to introduce into
evidence," (2) "segregate and identify, by April 25, 1988 those
documents, excluding investigative reports, in which a specific
defendant is mentioned by name," and (3) provide copies of the
latter documents to defense counsel.
-25-

continuances so the Defendants would have adequate time to examine
the disclosed evidence. Additionally, the Defendants have in no
way established prejudice to their substantial rights as a result
of any alleged error in the district court's administration of
discovery rules. Ellender, 947 F.2d at 756.
2
Jacky Pace next challenges the prosecution's failure to timely
produce a memorandum criticizing the DEA's handling of the
Metroplex Chemical operations. On October 5, 1989, shortly after
the second trial had started, Jacky Pace requested that the
district court order the government to produce all reports
criticizing the DEA's operations concerning several chemical supply
stores in the Dallas area. On October 10, the district court
directed the government to produce such reports. Because the
prosecution did not produce the memorandum until April 1990, Pace
contends that the government violated the command of Brady v.
Maryland, which held that "the suppression of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or punishment, irrespective of the good or
-26-

bad faith of the prosecution."29 373 U.S. 83, 87, 83 S. Ct. 1194,
1196-97, 10 L. Ed. 2d 215 (1963)
"To succeed on a Brady claim, a defendant must establish (1)
that evidence was suppressed; (2) that this evidence was favorable
to the accused; and (3) that the evidence was material either to
guilt or punishment." Ellender, 947 F.2d at 756. Evidence is
material "only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been would have been different. A
`reasonable probability' is the probability sufficient to undermine
confidence in the outcome." United States v. Bagley, 473 U.S. 667,
682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).
The prosecution produced the memorandum at issue to the
Defendants during trial.30 Thus, the prosecution did not suppress
any evidence. United States v. McKinney, 758 F.2d 1036, 1049-50
(5th Cir. 1985). Accordingly, we must determine only whether Pace
suffered any prejudice as a result of the prosecution's tardy
disclosure. Id. at 1050; see also Ellender, 947 F.2d at 757
29
The other Defendants contend that the tardy disclosure of
the memorandum constitutes evidence of prosecutorial misconduct in
that if the memorandum would have been available earlier in the
proceedings, it would have supported Jack Pace's defense and the
district court would have granted their motions to sever. However,
the district court's decision to deny the severance motions did not
turn on the credibility of Pace's defense, but rather that his
defense was not mutually antagonistic with the claims of innocence
made by the other Defendants.
30
As it turned out, the government's case agent, TDPS
Lieutenant Mike Dunn, authored the memorandum.
-27-

(holding that "a Brady violation does not require reversal if the
defendant was not prejudiced by the nondisclosure and could
adequately prepare a defense"). After reviewing the record, we
conclude that Pace suffered no prejudice. See Gonzalez, 967 F.2d
at 1036 (defendant failed to demonstrate prejudice resulting from
the government's failure to disclose certain statements where the
statements became known during the government's case-in-chief);
Ellender, 947 F.2d at 757 (no prejudice resulted where Brady
evidence was produced after the trial started). Pace had the
memorandum in advance of Dunn's testimony and, as the record
demonstrates, effectively used the memorandum during cross-
examination. Moreover, Pace, well in advance of receiving the Dunn
memorandum, thoroughly questioned several witnesses about the DEA's
involvement with Metroplex Chemicals.31 Therefore, we reject Jacky
Pace's Brady claim. See McKinney, 758 F.2d at 1050.
B
The Defendants further contend that they are entitled to
reversal because of certain improper remarks made by the prosecutor
at trial. "Improper comments by a prosecutor may constitute
reversible error where the defendant's right to a fair trial is
substantially affected." United States v. Anchondo-Sandoval, 910
F.2d 1234, 1237 (5th Cir. 1990). "The pertinent facts to consider
31
As his brief recognizes, "the trial court allowed counsel
for Defendant [Jacky] Pace to delve into matter of the DEA and DPS
involvement in operating chemical and glassware supply houses
. . . ."
-28-

include: (1) the magnitude of the prejudicial effect of the
statements; (2) the efficacy of any cautionary instruction; and
(3) the strength of the evidence of the defendant's guilt." Id.
"A criminal conviction is not to be lightly overturned on the basis
of a prosecutor's comments standing alone. The determinative
question is whether the prosecutor's remarks cast serious doubt on
the correctness of the jury's verdict." United States v. Iredia,
866 F.2d 114, 117 (5th Cir.), cert. denied, 492 U.S. 921, 109 S.
Ct. 3250, 106 L. Ed. 2d 596 (1989).
The first instance of impropriety cited by the Defendants
occurred when the prosecutor remarked during opening statements
that some government witnesses were "bad people" because they used
drugs. The Defendants argue that this was an indirect comment that
they also were bad people. We find nothing inappropriate, however,
in allowing the prosecution to inform the jury that several
government witnesses had questionable pasts. Cf. United States v.
West, 22 F.3d 586, ___ & n.21 (5th Cir. 1994) (not error for
government to impeach its own witness by means of his prior felony
convictions). Indeed, the government's effort to "pull the sting"
was entirely appropriate given here the defense strategy of
attempting to impeach several witnesses by questioning them about
their prior drug use.32
32
The Defendants also submit that the prosecutor engaged in
misconduct by arguing the case during his opening statement. After
reviewing the cited pages of the record, we conclude that the
prosecutor did not argue the case during opening statements.
Instead, the prosecutor merely informed the jury what he believed
-29-

The Defendants next challenge the prosecutor's
one-time
characterization of questions propounded by Jacky Pace's counsel as
an "attack," the prosecutor's "lumping" all the Defendants together
by using the term "they" when referring to questions asked by
counsel for Jacky Pace, and the prosecutor's placing a box labelled
"Fred's box of Gilbert D. Smith's baloney" on a table in view of
the jury. After each episode, however, the district court, as
requested by defense counsel, instructed the jury to disregard the
prosecutor's comments. Consequently, we do not believe that these
incidents provide any grounds for reversal.
C
The Defendants submit that the prosecutor engaged in
misconduct by allowing a government witness to improperly display
to the jury a "pouch" containing a syringe and pills seized from
Green at the time of his arrest.33 As the witness had already
testified that such items had been seized from Green, we do not
believe that allowing the witness to display the pouch constituted
reversible error. Cf. United States v. Allie, 978 F.2d 1401, 1408
(5th Cir. 1992) (stating that the improper admission of evidence
that is merely cumulative constitutes harmless error), cert.
denied, ___ U.S. ___, 113 S. Ct. 1662, 123 L. Ed. 2d 281 (1993).
Moreover, the district court appropriately cautioned the jury to
the evidence would demonstrate.
33
The pouch had not been, and was not, admitted in
evidence.
-30-

disregard the display of the seized items. Consequently, any
alleged prejudice was cured. Cf. United States v. Gordon, 780 F.2d
1165, 1175 (5th Cir. 1986) (holding that the improper admission of
extrinsic evidence could be cured by a limiting instruction).
D
Lastly, the Defendants contend that even if none of the events
of alleged misconduct warrants reversal,34 the cumulative effect of
the prosecutor's actions requires a new trial. In support of this
assertion, the Defendants cite United States v. Canales, 744 F.2d
413, 430 (5th Cir. 1984), for the proposition that "the cumulative
effect of several incidents of improper argument or misconduct may
require reversal, even though no single one of the incidents,
considered alone, would warrant such a result." Although that
proposition generally is true, we are not persuaded, in light of
the substantial evidence of guilt adduced at trial, that the
Defendants are entitled to reversal on the basis of cumulative
error. See United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir.
1992) ("Because we find no merit to any of Moye's arguments of
error, his claim of cumulative error must also fail."); cf. Derden
v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) (en banc) (holding
that claim of cumulative error does not entitle state prisoner to
habeas corpus relief unless claim of cumulative error refers to
errors, rather than mere unfavorable rulings or events, and the
34
Indeed, the Defendants appear to concede this point. See
Joint Brief at 60 ("Where, as here, prosecutorial misconduct does
not directly violate a criminal defendant's rights . . . .").
-31-

errors more likely than not caused a suspect verdict), cert.
denied, ___ U.S. ___, 113 S. Ct. 2928, 124 L. Ed. 2d 679 (1993).
VIII
The Defendants next submit that the district court committed
reversible error by not giving a "multiple conspiracy"
instruction.35 The Defendants specifically argue that the evidence
presented at trial demonstrated that "a number of conspiracies
could have existed other than [the] single conspiracy . . . alleged
in the indictment."36 The government argues that there was one and
only one overall conspiracy and that the Defendants were parties to
that conspiracy. We agree.
"Defendants are entitled to a multiple conspiracy instruction
when they specifically and timely request such an instruction and
their theory of multiple conspiracies is supported by the law and
has some foundation in the evidence." United States v. Greer, 939
F.2d 1076, 1088 (5th Cir. 1991), reinstated and modified on other
grounds, 968 F.2d 433 (5th Cir. 1992) (en banc), cert. denied, ___
U.S. ___, 113 S. Ct. 1390, 122 L. Ed. 2d 764 (1993). Although the
district court may decide, as a matter of law, that the evidence
fails to raise a factual question for the jury, "a multiple
35
The Defendants preserved this error by requesting such an
instruction at trial.
36
At times, it appears as if the Defendants contend that
the evidence was insufficient to support their convictions for
conspiracy. For example, they allege that "[n]o agreement was
proven to exist between [them]." However, the jury, in convicting
them of conspiracy, specifically found the existence of such an
agreement, and that finding is supported by the evidence.
-32-

conspiracy instruction `is generally required where the indictment
charges several defendants with one overall conspiracy but the
proof at trial indicates that a jury could reasonably conclude that
some of the defendants were only involved in separate conspiracies
unrelated to the overall conspiracy charge in the indictment.'"
Id. (quoting United States v. Anguiano, 873 F.2d 1314, 1317 (9th
Cir.), cert. denied, 493 U.S. 969, 110 S. Ct. 416, 107 L. Ed. 2d
381 (1989)).
We believe that the instructions provided by the district
court were sufficient to meet the Defendants' concerns.37 See id.
37
The district court instructed the jury:
Two essential elements are required to be proved beyond
a reasonable doubt in order to establish the offense of
conspiracy charged in the Indictment:
1. That two or more persons in some way or manner,
positively
or
tacitly,
came
to
a
mutual
understanding to try to accomplish a common and
unlawful plan, as charged in the Indictment,
2. That the defendant willfully became a member of
such conspiracy.
. . . .
The Indictment charges a conspiracy between the
named
defendants
and
others,
both
named
and
unnamed. . . . [Y]ou cannot find a defendant guilty
unless you find beyond a reasonable doubt that the
defendant participated in a conspiracy as charged with at
least one other person, whether named or not, as charged
in the Indictment.
In your consideration of the conspiracy offense as
alleged in the Indictment, you should first determine,
from all of the testimony and evidence in the case,
whether or not the defendant under consideration wilfully
became a member of such conspiracy.
If the jury should find from the evidence beyond a
reasonable doubt that the conspiracy charged in the
Indictment existed, and that the defendant under
consideration and at least one other person were member
of the conspiracy, then proof of the conspiracy is
-33-

at 1088-90 (holding that the jury instructions given by the
district court were adequate to inform the jury to consider whether
each of several defendants joined the conspiracy described in the
indictment). The evidence presented to the jury established that
the Defendants joined together to pursue a common goal,38 the nature
of the scheme was that of a single conspiracy,39 and that one
complete; and it is complete as to every person found by
the jury to have been willfully a member of the
conspiracy at the time alleged in the Indictment.
4 R. at 557-60 (emphases added).
38
A common purpose exists in a plan to derive personal gain
through the manufacture and distribution of amphetamine. See
United States v. Maceo, 947 F.2d 1191, 1196 (5th Cir. 1991), cert.
denied, ___ U.S. ___, 112 S. Ct. 1510, 117 L. Ed. 2d 647 (1992).
39
We have stated that
[w]here the activities of one aspect of the scheme are
necessary or advantageous to the success of another
aspect of the scheme or to the overall success of the
venture, where there are several parts inherent in a
larger common plan, . . . the existence of a single
conspiracy will be inferred.
United States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982). The
nature of the conspiracy here was that members had different tasks,
but all activities certainly were advantageous to the success of
the scheme. For example, Duncan, who was once an amphetamine
retailer for Pace, and Neal managed two corporations designed to
both provide chemicals necessary to manufacture amphetamine and
launder funds received as a result of the sale of amphetamine.
Sutherland both sold amphetamine and participated in the Pace
organization's money laundering activities. Joyce helped to
manufacture amphetamine for the organization, and Jones collected
money owed by purchasers and retailers of amphetamine to the
organization. Additionally, the evidence demonstrated that Green
was an amphetamine retailer and Graham, among other things, stored
amphetamine for the organization. See United States v. Richerson,
833 F.2d 1147, 1154 (5th Cir. 1987).
-34-

pivotal figure directed the illegal activities.40 See Maceo, 947
F.2d at 1196 ("In determining whether a single conspiracy existed,
this Court has examined three factors: (1) the existence of a
common goal; (2) the nature of the scheme; and (3) the overlap of
the participants."). Additionally, the danger that the Defendants
were convicted of participating in a conspiracy different from that
alleged in the indictment was minimized by the defenses presented
at trial; the Defendants))apart from Jacky Pace))argued that they
never entered into any agreement with Jacky Pace to manufacture,
possess, or distribute amphetamine. See United States v.
Hernandez, 962 F.2d 1152, 1159 (5th Cir. 1992) (defense that
defendant was not part of any conspiracy minimized the concern that
despite demonstrating his lack of involvement in the charged
conspiracy, he was convicted because of his association with, or
conspiracy for other unrelated purposes with, codefendants who were
members of the charged conspiracy). Finally, the district court's
refusal to give the requested jury instruction did not seriously
impair the Defendants' ability to present a given defense, as all
the Defendants were able to argue that they did not agree to
participate in any criminal conduct. See id. at 1160 (failure to
give multiple conspiracy instruction not reversible error where it
40
"A single conspiracy exists where a `key man' is involved
in and directs the illegal activities, while various combinations
of other participants exert individual effort toward a common
goal." Richerson, 833 F.2d at 1154. Here, Pace unquestionably was
the "key man" who directed the other conspirators activities. See
Maceo, 947 F.2d at 1197; Richerson, 833 F.2d at 1154.
-35-

did not impair the defendant's ability to present his given defense
of innocence). Consequently, the district court did not err in
refusing to give the requested multiple conspiracy instruction.
IX
Joyce argues that the district court erred in allowing
testimony that police officers, pursuant to a search incident to
his arrest, discovered a firearm in the vehicle that he was
driving. Officer James Beasley testified that Joyce had
"committed" to entering the driveway of an amphetamine laboratory
site when he apparently saw officers surveilling it. When Joyce
attempted to leave the area, officers stopped his vehicle. While
speaking with Joyce, Beasley noticed a "very strong pungent smell
of phenylacetic acid[))a chemical used in the manufacture of
amphetamine))coming] from inside the vehicle." Beasley testified
that he subsequently saw a pistol "wedged down in the seat beside
the driver's right leg," and Joyce then was arrested.
Joyce failed to object at trial to the testimony that he
possessed a firearm when arrested.41 Therefore, we may reverse only
if the admission of the testimony at issue constitutes plain error.
See Fed. R. Crim. P. 52(b); United States v. Greenwood, 974 F.2d
1449, 1462 (5th Cir. 1992), cert. denied, ___ U.S. ___ 113 S. Ct.
2354, 124 L. Ed. 2d 262 (1993). After reviewing the record, we are
41
To the extent Joyce's claim of error can be construed a
challenge to Beasley's subsequent testimony that Joyce was arrested
for possessing the pistol, Joyce again failed to lodge a
contemporaneous objection.
-36-

firmly convinced that the introduction of the testimony could not
be plain error in light of the overwhelming evidence of Joyce's
participation in the charged conspiracy. See United States v.
Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d. 1
(1985) (noting that "the plain error exception to the
contemporaneous-objection rule is to be `used sparingly, solely in
those circumstances in which a miscarriage of justice would
otherwise result'") (citation omitted). Accordingly, we need not
address the merits of his claim. Greenwood, 974 F.2d at 1463.
X
Lastly, Duncan points out the jury found him guilty of both
engaging in a conspiracy in violation of 21 U.S.C. ง 846))as
charged in count 1 of the indictment))and participating in a
continuing criminal enterprise ("CCE") in violation of 21 U.S.C.
ง 848))as charged in count 5. Duncan contends that participation
in a ง 846 conspiracy is a lesser-included offense of participation
in a ง 848 continuing criminal enterprise. The government agrees.
See United States v. Devine, 934 F.2d 1325, 1342 (5th Cir. 1991)
(noting that "a ง 846 conspiracy is a lesser-included offense of a
ง 848 continuing criminal enterprise"), cert. denied, ___ U.S. ___,
112 S. Ct. 349, 116 L. Ed. 2d 288 (1992). Consequently, the Double
Jeopardy Clause requires that we vacate Duncan's conviction and
sentence for conspiracy. See United States v. Gonzalez-Balderas,
11 F.3d 1218, 1225 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.
Ct. 2138, ___ L. Ed. 2d ___ (1994).
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Duncan argues that we should not merely vacate his conviction
and sentence under Count 1, but also that we should vacate his
sentence under Count 5 and remand for resentencing. We agree. The
record is unclear as to whether the conspiracy conviction led the
trial court to impose a harsher sentence on the CCE count.42
Consequently, a remand is necessary. See United States v. Michel,
588 F.2d 986, 1001 (5th Cir. 1979) (noting that a remand would not
be necessary if "it is clear that the conviction for conspiracy did
not lead the trial court to impose a harsher sentence on the
greater offense than he would have in the absence of the lesser
conviction"), cert. denied, 444 U.S. 825, 100 S. Ct. 47, 62 L. Ed.
2d 32 (1979); see also Gonzalez-Balderas, 11 F.3d at 1225.
XI
For the foregoing reasons, we VACATE Duncan's conviction for
conspiring to possess amphetamine with intent to distribute under
Count 1. Additionally, we VACATE the convictions of Smith and Glen
Pace and the sentence of Duncan pursuant to Count 5 of the
indictment, and REMAND for further proceedings consistent with this
opinion. In all other respects, we AFFIRM the judgment of the
district court.
42
Duncan was sentenced to concurrent terms of imprisonment
of sixty years on the CCE count and fifteen-years on conspiracy
count. On the other counts of conviction))investing income derived
from a drug conspiracy, aiding and abetting interstate travel in
furtherance of a drug conspiracy, and conspiring to impede the
Internal Revenue Service))Duncan received terms of ten years, five
years, and five years, all to run concurrently with the CCE
sentence.
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