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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-8358
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TYRON MOUTON MITCHELL, BYRON LAMONTE McCUTCHEON,
RAYMOND LEE HARBERT, JR., COREY LAMONT HARBERT
and DERRICK DWAYNE BRISCOE,
Defendants-Appellants.
______________________________________________________
Appeals from the United States District Court
for the Western District of Texas
______________________________________________________
(August 25, 1994)
Before POLITZ, Chief Judge, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge.
Tyron Mitchell, Byron McCutcheon, Raymond Harbert, Corey
Harbert, and Derrick Briscoe (collectively "Appellants") were
convicted of a conspiracy to possess crack cocaine with intent to
distribute. Appellants challenge their convictions and sentences.
We affirm.
BACKGROUND
In 1990, an undercover drug investigation identified Delvin
Livingston, among others, as supplying cocaine and overseeing the
distribution of crack cocaine in Waco and Houston, Texas and
Mississippi. Marvin Webster and Tyron Mitchell were identified as
mid-level distributors for Livingston in Waco and Houston. They
supplied dealers in Waco such as Byron McCutcheon, and a group of

individuals who called themselves the Pecan Garden Posse. The
group included Raymond Harbert, his brother, Corey Harbert, and
their cousin, Derrick Briscoe.
In 1992, Mitchell, McCutcheon, Briscoe, and the Harbert
brothers (along with Livingston and Webster) were indicted for
conspiracy to possess crack cocaine with intent to distribute under
21 U.S.C. § 846. Additionally, Mitchell and McCutcheon were
indicted for carrying weapons during and in relation to drug
trafficking activity under 18 U.S.C. § 924(c), and McCutcheon was
charged with possession of cocaine with intent to distribute under
21 U.S.C. § 841(a)(1). Appellants were convicted of all counts,
except that McCutcheon was acquitted of the weapons offense.
Mitchell was sentenced to life imprisonment on the conspiracy
conviction and a consecutive five-year term on the weapon offense.
McCutcheon and Briscoe were each sentenced to 360 months
imprisonment, and the Harbert brothers were each sentenced to 240
months. This appeal followed.

DISCUSSION
I. Sufficiency of the Evidence Supporting the Conspiracy

Convictions of Briscoe and the Harbert Brothers
Briscoe, Raymond Harbert, and Corey Harbert contend that the
evidence was insufficient to support their convictions for
conspiracy. Upon such a challenge, we review all evidence,
together with all credibility choices and reasonable inferences, in
the light most favorable to the verdict. United States v.
Maseratti, 1 F.3d 330, 337 (5th Cir. 1993), cert. denied, 114 S.
Ct. 1096, and cert.denied, 114 S. Ct. 1553 (1994). Our inquiry is
2

whether a rational trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. Id.
To establish guilt of a drug conspiracy under 21 U.S.C. 846,
the government must prove that (1) there was an agreement between
two or more persons to import or possess controlled substances with
intent to distribute; (2) each defendant knew of the conspiracy and
intended to join it; and (3) each defendant voluntarily
participated in the conspiracy. United States v. Skillern, 947
F.2d 1268, 1273 (5th Cir. 1991), cert. denied, 112 S. Ct. 1509
(1992). Proof of any element may be by circumstantial evidence,
and "'[c]ircumstances altogether inconclusive, if separately
considered, may, by their number and joint operation, . . . be
sufficient to constitute conclusive proof.'" United States v.
Roberts, 913 F.2d 211, 218 (5th Cir. 1990) (quoting United States
v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)), cert.denied, 500
U.S. 955 (1991). With the above in mind, we review the evidence
against Briscoe and the Harbert brothers.
A.
Raymond Harbert
The evidence indicated that Raymond Harbert was a member of
the Pecan Garden Posse, a group of individuals who sold crack
cocaine supplied by Mitchell and Webster. A government witness
identified Raymond as his frequent source of crack, testified that
Raymond had admitted to him that Webster was his source, and
described an occasion when Raymond had manufactured crack at
Webster's apartment. Telephone records showed numerous calls
between telephones associated with the Harbert brothers and
3

Livingston and Webster. Moreover, a search of Raymond and Corey
Harbert's parents' residence uncovered documents listing the
telephone numbers of Livingston and Webster. This evidence was
sufficient to support the conspiracy conviction.
B.
Briscoe
The government also presented sufficient evidence to support
Briscoe's conviction. In addition to testimony that Briscoe was a
member of the Pecan Garden Posse, a witness testified that, on one
occasion during the conspiracy period, Briscoe supplied him with
crack cocaine. Furthermore, telephone records indicating that
multiple calls were made between Briscoe and Webster and items
seized from Briscoe's residence (including a pager, crack pipe, and
documents containing the telephone numbers of Webster and
McCutcheon) also provided support.
C.
Corey Harbert
Corey Harbert, like his brother and cousin, was a member of
the group supplied by Mitchell and Webster. A government witness
specifically characterized Corey as one of Webster's drug
"runners." Additionally, in describing an occasion when Raymond
Harbert had manufactured crack at Webster's apartment, the witness
noted that Corey was present. Furthermore, a paper sack discovered
during a search of Webster's residence (on which were written the
name "Corey" and letters and numbers interpreted by a government
witness as referring to drug transactions), as well as telephone
records and documents found at the Harbert residence, supported
Corey's conspiracy conviction. This collection of evidence and
4

circumstances was sufficient to allow a reasonable jury to find
that Corey Harbert was a member of the conspiracy charged in the
indictment.
II. Motion to Suppress Evidence found in McCutcheon's Home
McCutcheon contends that the district court should have
suppressed the evidence obtained from the search of his residence
because the affidavit in support of the search warrant did not
establish probable cause. In reviewing a district court's denial
of a motion to suppress, we employ a two-part test: (1) whether the
good faith exception to the exclusionary rule applies and (2)
whether the warrant was supported by probable cause. United States
v. Laury, 985 F.2d 1293, 1311 (5th Cir. 1993). Generally, if the
good faith exception applies, we need not reach the probable cause
issue. Id.
Under the good faith exception, we uphold a search if the
officers reasonably relied on a search warrant. United States v.
Fisher, 22 F.3d 574, 578 (5th Cir. 1994). "Warrants based on
affidavits 'so lacking in evidence of probable cause as to render
official belief in its existence entirely unreasonable' do not fall
within this exception." Id. (quoting United States v. Satterwhite,
980 F.2d 317, 320 (5th Cir. 1992)). But "[w]here a warrant is
supported by more than a bare bones affidavit, an officer may rely
in good faith on the warrant's validity." Laury, 985 F.2d at 1311
(footnote omitted). The affidavit in this case clearly satisfies
the good faith exception.
The affiant reported that three confidential informants had
5

implicated McCutcheon in drug dealing. One told an officer that he
saw McCutcheon and Webster together in Webster's car with 1.5
kilograms of cocaine in their possession. Another reported to the
same officer that McCutcheon had sold a quarter ounce of cocaine to
an individual in a convenience store. And a third informant
described to the affiant an incident in which Webster and
McCutcheon had brought 30 rocks of cocaine to the Harberts. This
informant also identified McCutcheon as one of Webster's runners
and told the affiant that Luis Sais, a drug dealer, claimed to have
bought crack and cocaine powder from McCutcheon over a four-month
period.
McCutcheon attempts to discount these informant reports by
arguing that they were hearsay. An affidavit may, however, employ
hearsay as long as it provides a "substantial basis for crediting
the hearsay." Illinois v. Gates, 462 U.S. 213, 242 (1983) (quoting
Jones v. United States, 362 U.S. 257, 269 (1960)). The affidavit
in this case provided such a basis. It averred that each informant
was credible and reliable because the information they provided was
corroborated
through
independent
investigations,
personal
observation, and information provided by other informants. It also
indicated that the informants had provided reliable information in
the past. We conclude that the officers could rely in good faith
on the affidavit.
III. Racial Composition of Venire
McCutcheon claims the venire was not selected from a fair
cross-section of the community. Specifically, he asserts that
6

African-Americans and Hispanics were underrepresented. To
establish such a claim "the defendant must show (1) that the group
alleged to be excluded is a 'distinctive' group in the community;
(2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364
(1979). McCutcheon presented no evidence supporting his assertion
that African-Americans and Hispanics were underrepresented or
suggesting that they had been systematically excluded. Therefore,
the district court properly rejected his claim.
IV. Conspiracy Instruction
McCutcheon contends that the court did not properly instruct
the jury on the elements of conspiracy. As he did not make this
objection during the trial, we will not disturb the decision unless
we find plain error. United States v. Davis, 19 F.3d 166, 169 (5th
Cir. 1994). "Plain error occurs only when the instruction,
considered as whole, was so clearly erroneous as to result in the
likelihood of a grave miscarriage of justice." Id. With this
standard in mind, we address McCutcheon's specific arguments.
He first argues that the charge did not require the government
to prove that he knew of and voluntarily participated in the
conspiracy. We disagree. The court told the jury that to convict
the defendant of conspiracy, it must be convinced beyond a
reasonable doubt that (1) there was a conspiracy and (2) the
7

defendant willfully became a member of such conspiracy. The phrase
"willfully became a member" adequately incorporates the elements of
knowledge and participation.
Second, he challenges a Fifth Circuit pattern jury
instruction, which informed the jury that to convict the defendant
of conspiracy, it did not have to find that "all of the persons
alleged [in the indictment] to have been members of the conspiracy
were such." According to McCutcheon, this instruction was
ambiguous as to whether the government must prove that he was a
member of the conspiracy. Considering the whole charge, we find
that the government's burden was sufficiently clear. The court
told the jury several times during the charge that it must find
that the defendant willfully became a member of the conspiracy.
Plain error did not occur.

V. Motion to Sever Briscoe's Trial
Briscoe complains that the trial court erred in denying his
Rule 14 motion for severance. Our review of such a denial is
limited to abuse of discretion. United States v. Pofahl, 990 F.2d
1456, 1483 (5th Cir.), cert. denied, 114 S. Ct. 266, and cert.
denied, 113 S. Ct. 560 (1993). Under this standard of review, "a
defendant must show that he suffered specific and compelling
prejudice against which the district court could not provide
adequate protection, and that this prejudice resulted in an unfair
trial." United States v. Villarreal, 963 F.2d 725, 731 (5th Cir.),
cert. denied, 113 S. Ct. 353 (1992).
In an effort to meet his heavy burden, Briscoe argues that his
8

trial should have been severed because he was a minor participant
in the conspiracy and most of the evidence presented at trial did
not pertain to him. He further argues that he was prejudiced by
the volume of evidence against his co-defendants. We are not
persuaded. A quantitative disparity in the evidence does not by
itself warrant severance nor does the mere presence of a spillover
effect. See Pofahl, 990 F.2d at 1483. Furthermore, the court
protected Briscoe against spillover by instructing the jury to
separate the evidence and apply it only to the defendant against
whom it was offered. The district court did not abuse its
discretion.

VI. Evidence of Convictions
Raymond Harbert contends that the district court erred in
allowing government witnesses to testify on direct examination that
they had pled guilty and been convicted of drug offenses, including
offenses in which some of the defendants were involved as co-
conspirators. We have repeatedly held that a witness-accomplice's
guilty plea may be admitted into evidence if it serves a legitimate
purpose and a proper limiting instruction is given. See, e.g.,
United States v. Holley, 23 F.3d 902, 911 (5th Cir. 1994). These
conditions have been met.
The prosecutor legitimately elicited evidence of witness plea
bargains and convictions to "blunt the sword of anticipated
impeachment." United States v. Valley, 928 F.2d 130, 133 (5th Cir.
1991) (citations omitted). Moreover, the court properly instructed
the jury about the limited use of guilty pleas. It informed the
9

jury that witness convictions could be considered only in
determining witness credibility. It also cautioned that the fact
that a co-conspirator has entered a plea of guilty to the offense
charged is not evidence of the defendant's guilt. Therefore, we
reject Raymond Harbert's contention.
VII. Sentencing Determinations
A. Amount of Drugs Attributed to Briscoe, McCutcheon and
Corey Harbert
McCutcheon, Briscoe, and Corey Harbert contest the district
court's decision to hold them accountable for 5 to 15 kilograms of
cocaine. Under the Sentencing Guidelines, a defendant who
participates in a drug conspiracy is accountable for the quantity
of drugs, which is attributable to the conspiracy and reasonably
foreseeable to him. See U.S.S.G. § 1B1.3(a)(1)(B). The
computation of the amount of drugs for which an individual shall be
held accountable at sentencing represents a factual finding, which
must be established by a preponderance of the evidence. United
States v. Mergerson, 4 F.3d 337, 343-44 (5th Cir. 1993), cert.
denied, 114 S. Ct. 1310 (1994). The finding shall be upheld on
appeal unless it is clearly erroneous. United States v. Ponce, 917
F.2d 841, 842 (5th Cir. 1990), cert. denied, 499 U.S. 940 (1991).
The court's decision was based in part on the testimony of a
government investigator who estimated that approximately one
kilogram per month of crack cocaine was being distributed during
the course of the conspiracy from August 1990 to August 1992.
Appellants do not challenge that estimate. Rather, they argue that
it was not foreseeable to them. To the contrary, a preponderance
10

of the evidence indicated that Appellants actively participated in
the conspiracy, none of them were late joiners, and they could
reasonably foresee they were not the exclusive customers of their
suppliers. Considering this evidence, we cannot say that the
district court's decision was clearly erroneous.
B.
Briscoe's Possession of a Weapon
Briscoe argues that the court erred in increasing his offense
level for possession of a firearm during the course of a drug
offense. Section 2D1.1 of the Sentencing Guidelines instructs the
sentencing court to increase the defendant's offense level by two
whenever, in a crime involving the manufacture, import, export,
trafficking, or possession of drugs, a dangerous weapon was
possessed. Application Note 3 to § 2D1.1 explains that the
enhancement for possession of a weapon "should be applied if the
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense."
Upon assessing the penalty, the court noted that Briscoe was
twice found to be in possession of a firearm in connection with the
conspiracy. During a search of a residence occupied by Briscoe but
owned by his cousin Johnny Hines, officers found, among other
things, a .45 caliber semi-automatic pistol in a table in Briscoe's
bedroom. And on another occasion, when officers attempted to stop
a car driven by Briscoe, Briscoe jumped out of the car, ran to the
front door of Hines's house and handed Hines a small caliber
revolver.
On appeal, Briscoe, focusing solely on the gun found during
11

the search of Hines's house, argues that the court failed to make
a factual determination whether he possessed the gun. This
argument is without merit. The court clearly stated that the
enhancement was appropriate because Briscoe possessed a gun twice
during the commission of the conspiracy.
Next, he argues, as he did at the sentencing hearing, that the
two-level penalty should not have been assessed because the gun was
inoperable and the government did not prove that he possessed the
gun. In support of his argument he notes that (1) the gun had no
clip and no ammunition was found, (2) it was not in plain view, (3)
it was found in Hines's house, and (4) Hines testified that the gun
was his and that Briscoe was merely a guest in his home. We review
the district court's determination for clear error. See Mergerson,
4 F.3d at 350.
It is not dispositive that the gun was inoperable. United
States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990). Section
2D1.1(b)(1) is an added punishment for drug offenders who heighten
the danger of drug trafficking by possessing a dangerous weapon.
Id. The mere presence of gun, loaded or not, can escalate the
danger. Id. The other facts and assertions are also not
dispositive. In determining possession "[w]hat matters is not
ownership but accessibility." United States v. Menesses, 962 F.2d
420, 429 (5th Cir. 1992). The government proved that Briscoe
resided in the house and in the bedroom where the gun was found.
Given this evidence, the court's finding that Briscoe was in
possession of the gun was not clearly erroneous.
12

Finally, Briscoe suggests that there was no evidence that the
weapon was possessed in connection with the conspiracy. Because he
raises this argument for the first time on appeal, our review is
limited to plain error. United States v. McCaskey, 9 F.3d 368, 376
(5th Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994). A thorough
examination of the record reveals that the finding that Briscoe
possessed a gun in connection with the conspiracy did not result in
plain error.
The government may satisfy its burden of proving a connection
by "providing evidence that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part
of the transaction occurred." During his membership in the
conspiracy, Briscoe was twice found to be in possession of a gun
while at Hines's house. The probation officer relayed reports that
Hines's house was used for drug trafficking. And finally, items
found during searches of the house (including a pager, crack pipe,
and documents containing the telephone numbers of Webster and
McCutcheon) also provide a nexus.
C. Mitchell's Managerial Status
Section 3B1.1(b) directs the sentencing court to increase a
defendant's offense level by three "if the defendant was a manager
or supervisor . . . and the criminal activity involved five or more
participants or was otherwise extensive." Mitchell argues, for the
first time on appeal, that the court erred in assessing the three-
level increase. Accordingly, our review is limited to plain error.
Pofahl, 990 F.2d at 1471.
13

In recommending the three-level enhancement, the probation
officer stated that Mitchell made trips to Houston to pick up
multiple kilograms of cocaine, which he transported to central
Texas for distribution in Waco, Temple, and Austin, and that he
recruited individuals for distributing drugs and claimed a larger
share of the profits. In light of these statements, which were not
challenged by Mitchell at sentencing, we conclude that the court
did not plainly err in applying the three-level increase.
D.
Briscoe's and McCutcheon's Entitlement to Credit for
Minimal or Minor Participation
Briscoe and McCutcheon contend they are entitled to a
reduction in their offense levels because their roles in the
conspiracy were minimal or minor as compared to the roles of
others. We review under the clearly erroneous standard. United
States v. Buenrostra, 868 F.2d 135, 138 (5th Cir. 1989), cert.
denied, 495 U.S. 923 (1990).
Guideline section 3B1.2 provides a two- to four-level
reduction in the base offense level for minimal and minor
participants. The Guidelines define "minimal participant" as one
who demonstrates a "lack of knowledge or understanding of the scope
and structure of the enterprise." U.S.S.G. § 3B1.2, cmt. (n.1).
A "minor participant" is similarly defined as one who is "less
culpable than most other participants, but whose role could not be
described as minimal." Id. (n.3). Because most offenses are
committed by participants of roughly equal culpability, our Court
has noted that "it is intended that [the adjustment] will be used
infrequently." United States v. Nevarez-Arreola, 885 F.2d 243, 245
14

(5th Cir. 1989). We are unpersuaded by Briscoe's and McCutcheon's
suggestion that either classification applies to them.
The evidence establishes that Briscoe was one of the primary
members of the Pecan Garden Posse who, along with the Harbert
brothers, received cocaine from Webster and then distributed it in
Waco. The evidence further indicates that McCutcheon received
significant amounts of cocaine from Webster and then distributed it
to lower level street dealers. Based on this evidence, the court
found Briscoe and McCutcheon to be average participants in the
conspiracy and denied the reduction. We cannot say that the
district court's determination was clearly erroneous.

E.
McCutcheon's Misconduct While on Probation
Pursuant to Sentencing Guidelines § 4A1.1(d), the district
court added two points to McCutcheon's criminal history computation
for participating in the conspiracy while on probation from a local
conviction. Claiming that the government failed to prove that he
committed any conspiratorial acts during his probation period,
McCutcheon contends that the court erred in assessing the penalty.
Contrary to McCutcheon's claim, the record supports the
enhancement.
McCutcheon's period of probation was May 1991 to November
1991. At trial, Vincent Walton testified that he bought cocaine
from McCutcheon in the summer of 1991. Louis Sais stated that he
saw Webster supply McCutcheon with drugs around the end of 1991 or
early in 1992. Sais also admitted engaging in six or seven
purchases of cocaine from McCutcheon at approximately this same
15

time period. And Sais recounted an incident occurring in 1990,
when Webster and McCutcheon came to his house to manufacture crack.
The district court properly assessed the penalty.
CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.
16