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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 94-10247
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE DEAN, JAMES EARL COFER, KENNETH DEWAYNE
SMITH, and KENNETH EARL FLOWERS,
Defendants-Appellants.
__________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
__________________________________________________
(July 21, 1995)
Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
George Dean, James Earl Cofer, Kenneth Dewayne Smith, and
Kenneth Earl Flowers were indicted by a federal grand jury on
charges of conspiring to possess with intent to deliver crack
cocaine,1 possessing with intent to deliver crack cocaine,2 and
using or carrying a firearm during a drug trafficking crime.3 Dean
1
See 21 U.S.C. зз 841(a)(1), 846 (1988).
2
See 21 U.S.C. з 841(a)(1).
3
See 18 U.S.C. з 924(c) (1988).

and Cofer were convicted on the drug counts, but acquitted on the
weapons count;4 Smith and Flowers were convicted on all three
counts.5 We affirm Dean, Cofer, Smith, and Flowers' convictions,
but vacate their sentences and remand for resentencing.
I
The Amarillo Police Department arrested George Dean, James
Earl Cofer, Kenneth Dewayne Smith, and Kenneth Earl Flowers with
the cooperation of informants Jackie Small and Calvin Thomas.
Small and Thomas, who had been arrested in New Mexico for
possessing crack cocaine, agreed to help the Amarillo police set up
a purchase of five ounces of crack cocaine from Fred Espy, a dealer
Small and Thomas knew in Amarillo. Small telephoned Espy, but
Flowers returned her call. Small and Flowers discussed the
possibility of Small's purchasing five ounces of crack cocaine.
Later, Small and Thomas went to Espy's house to discuss the
transaction with Espy personally. At that time, Espy agreed to
sell Small and Thomas five ounces (about 141.75 grams) of crack
cocaine for $5,000. When Small and Espy spoke again, Espy told
Small that he would deliver the drugs to her motel room.
The Amarillo police hid a camera inside the motel room where
the transaction was to take place, and ten police officers hid in
4
Dean and Cofer were sentenced to 151 months' imprisonment, a
mandatory assessment, and a term of supervised release.
5
Smith was sentenced to 228 months' total imprisonment, a mandatory
assessment, and a term of supervised release. Flowers was sentenced to 151
months' imprisonment, a mandatory assessment, and a term of supervised release.
-2-

the next-door room. Six other officers watched the motel's parking
lot. One of these officers testified that he had observed a
vehicle pull into the parking lot and park, and then, a few seconds
later, another vehicle pull into the lot and park behind the first
vehicle. Three men emerged from the first vehicle, and two men
from the second, but the officer was unable to identify who had
been in which vehicle. The five men congregated between the
vehicles for approximately ten seconds, and then walked toward the
motel room where Small and Thomas were waiting. Three of the men
entered the motel room; the remaining two, later identified as Dean
and Cofer, remained outside.
Smith, Flowers, and Espy entered the motel room and closed the
door behind them. Once inside, Smith took several small bags
containing a total of 123.7 grams (about 4.36 ounces) of crack
cocaine from his clothes and placed them on the bed. Espy was
nearby, making conversation with Small and Thomas, and Flowers
stood in front of the closed door. Thomas asked Small to retrieve
the money to pay for the drugs from a car parked outside.
Immediately after Small exited through the front door, the police
entered the motel room through both the front door and an interior
door.
Deputy Sheriff Charles Jones testified that after Smith,
Flowers, and Espy entered the motel room, Dean and Cofer "peeled
off kind of to the right and walked out into the parking lot. They
separated, one would go this way, the other this way, all the while
-3-

turning their head." Jones testified that Dean and Cofer walked
back and forth in front of the room approximately four or five
times, each time covering from 60 to 70 feet. Jones also testified
that, on each pass, Dean and Cofer would "disappear briefly, for
three or four seconds around the corner of the motel and then be
back." Jones testified that Dean and Cofer behaved in this manner
until Small emerged from the motel room, and he characterized their
behavior as that of lookouts.6
The police fired their guns several times during the raid,
fatally wounding Espy, and wounding Thomas and an officer who was
in the next room.7 When gunfire erupted in the motel room, Dean
and Cofer fled from the scene. Cofer was apprehended and arrested
outside the motel room, and Dean was arrested within 100 feet of
the motel. The police found no drugs on either Dean or Cofer. In
addition to the drugs found on the bed in the motel room, police
found 24.5 grams of crack cocaine in Espy's pants and underwear,
5.3 grams in Smith's underwear, and .82 grams in Flowers' sock.
Dean, Cofer, Smith, and Flowers were convicted in federal
district court of conspiring to possess with the intent to deliver
crack cocaine and of possessing with the intent to deliver crack
cocaine. Smith and Flowers were also convicted of using or
carrying a firearm during a drug trafficking crime. Dean, Cofer,
6
The videotape of the drug transaction shows that approximately 48
seconds passed from the time Smith, Flowers, and Espy entered the room to the
time that Small exited.
7
Of Smith, Flowers, and Espy, only Espy was armed.
-4-

Smith, and Flowers appeal their convictions and sentences on
several grounds.
II
Dean, Cofer, Smith, and Flowers argue that insufficient
evidence supports their convictions. In our review of the
sufficiency of the evidence supporting the jury's verdict, "we
determine whether, viewing the evidence and the inferences that may
be drawn from it in the light most favorable to the verdict, a
rational jury could have found the essential elements of the
offenses beyond a reasonable doubt." United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, ___ U.S. ___,
112 S. Ct. 2952, 119 L. Ed. 2d 575 (1992); see also United States
v. Quiroz-Hernandez, 48 F.3d 858, 865 (5th Cir. 1995) ("[T]he
inquiry into the sufficiency of the evidence is whether the jury
could reasonably, logically and legally infer that the defendant
was guilty beyond a reasonable doubt."), petition for cert. filed,
No. 94-8950 (U.S. Apr. 10, 1995); United States v. Jaramillo, 42
F.3d 920, 922-23 (5th Cir. 1995) (same); United States v. Fierro,
38 F.3d 761, 768 (5th Cir. 1994) (same), cert. denied, ___ U.S.
___, 115 S. Ct. 1388, 131 L. Ed. 2d 240 (1995).8 We recognize that
8
We apply this standard of review because Dean, Cofer,
Smith, and Flowers each preserved his sufficiency of the evidence
claim by moving for a judgment of acquittal at trial. We apply a
stricter standard when a defendant fails to preserve a sufficiency
claim. See United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir.
1991) (applying "manifest miscarriage of justice" standard where
defendant failed to move for a directed verdict or a judgment of
acquittal).
-5-

the jury was "free to choose among all reasonable constructions of
the evidence," United States v. Chaney, 964 F.2d 437, 448 (5th
Cir. 1992), and we "accept all credibility choices that tend to
support the jury's verdict." United States v. Anderson, 933 F.2d
1261, 1274 (5th Cir. 1991); see also Jaramillo, 42 F.3d at 922-23
("The jury retains sole responsibility for determining the weight
and credibility of the evidence."); United States v. Zuniga, 18
F.3d 1254, 1260 (5th Cir.) ("We will not second guess the jury in
its choice of which witnesses to believe."), cert. denied, ___ U.S.
___, 115 S. Ct. 214, 130 L. Ed. 2d 142 (1994). We view the
evidence, both direct and circumstantial, as well as all reasonable
inferences from that evidence, in the light most favorable to the
verdict. Jaramillo, 42 F.3d at 923; Fierro, 38 F.3d at 768.
Moreover, we determine only whether the jury made a rational
decision, not whether its verdict was correct on the issue of guilt
or innocence. See Jaramillo, 42 F.3d at 923 ("A review
concentrates on whether the trier of fact made a rational decision
to convict or acquit, not whether the fact finder correctly
determined the defendant's guilt or innocence."). "Further, the
evidence need not exclude every reasonable hypothesis of
innocence." Jaramillo, 42 F.3d at 923; United States v. Leed, 981
F.2d 202, 207 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.
1346, 122 L. Ed. 2d 728 (1993). "However, we must reverse a
conviction if the evidence construed in favor of the verdict `gives
equal or nearly equal circumstantial support to a theory of guilt
-6-

and a theory of innocence of the crime charged.'" Jaramillo, 42
F.3d at 923 (quoting United States v. Menesses, 962 F.2d 420, 426
(5th Cir. 1992)); accord United States v. Pennington, 20 F.3d 593,
597 (5th Cir. 1994).
A
Dean, Cofer, and Flowers contend that insufficient evidence
supports the jury's verdict against them on the conspiracy count.
The Government presented the following evidence of the conspiracy
at trial: (1) Pictures of Dean, Cofer, and Flowers were found in
the glove compartment of Espy's car; (2) Cofer was seen at Espy's
house in the afternoon before the drug transaction; (3) Small
identified Flowers as the person with whom she spoke on the
telephone to arrange to buy crack cocaine from Espy; (3) Dean,
Cofer, Flowers, Espy, and Smith arrived in the parking lot of the
motel at about the same time, but in two separate vehicles;9 (4)
Dean, Cofer, Flowers, Espy, and Smith gathered between the vehicles
for about ten seconds, and then walked toward the room in which the
government informants were waiting; (5) Flowers, Espy, and Smith
entered the motel room, but Dean and Cofer remained outside; (6) As
Espy closed the door to the motel room behind him, Small asked:
"Who's that outside? Who is that behind y'all?" Espy answered:
"Oh, that's some of my people. I didn't know what was gonna
happen;" (7) Inside the motel room, Flowers stood near the door as
9
The government agent observing their arrival was unable to determine
who arrived in which car. Three individuals arrived in the car that was later
identified as belonging to Espy, and two arrived soon thereafter in a truck.
-7-

the drug transaction took place; (8) Outside the motel room, Dean
and Cofer walked out into the parking lot and then separated. Each
walked "back and forth" in front of the motel room, acting like
lookouts; (9) When gunfire erupted inside the motel room, Dean and
Cofer fled; and (10) The police found crack cocaine taped to
Flowers' ankle.
"To establish the offense of a drug conspiracy, the Government
must prove beyond a reasonable doubt that a conspiracy existed,
that the accused knew of the conspiracy, and that he voluntarily
joined it."10 The Government need not prove these elements through
direct evidence; the jury may infer each element of a conspiracy
from circumstantial evidence.11 Nevertheless, "while circumstantial
evidence may be particularly valuable in proving the existence of
the conspiratorial agreement, we have repeatedly stressed that we
will not lightly infer a defendant's knowledge of and participation
in a conspiracy."12 Thus, "placing a defendant in a `climate of
activity that reeks of something foul' is not enough to support a
10
United States v. Limones, 8 F.3d 1004, 1009 (5th Cir. 1993), cert.
denied, ___ U.S. ___, 114 S. Ct. 1543, 128 L. Ed. 2d 194 (1994); accord Quiroz-
Hernandez, 48 F.3d at 866; Fierro, 38 F.3d at 768; United States v. Bermea, 30
F.3d 1539, 1551 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1113, 130
L. Ed. 2d 1077 (1995); United States v. Puig-Infante, 19 F.3d 929, 936 (5th
Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 180, 130 L. Ed. 2d 115 (1994).
11
United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), cert.
denied, ___ U.S. ___, 114 S. Ct. 2150, 128 L. Ed. 2d 876 (1994).
12
United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992) (citing
United States v. Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied, 464 U.S.
842, 104 S. Ct. 139, 78 L. Ed. 2d 132 (1983)).
-8-

conspiracy conviction."13 Evidence that a defendant "more likely
than not" knowingly joined a conspiracy is insufficient for the
Government to prove its case beyond a reasonable doubt. United
States v. Espinoza-Seanez, 862 F.2d 526, 538 (5th Cir. 1988).
1
Dean argues that there is no evidence in the record that he
"`agreed' to do anything at all, much less that he had the
deliberate intent to participate in the conspiracy to possess or
distribute drugs." Cofer claims that "the government has simply
failed to prove beyond a reasonable doubt that Defendant Cofer
agreed to help with the sale of the drugs in the hotel room." The
Government contends that based on the evidence it presented at
trial, the jury could have concluded beyond a reasonable doubt that
Dean and Cofer knowingly agreed to act as lookouts for the drug
transaction.
Taking the Government's evidence in the light most favorable
to the verdict, we know that Dean and Cofer were both associates of
Espy; that they either met Espy at the motel where Espy had
arranged to sell crack cocaine, or arrived there with Espy; that
they were present outside the motel room during the transaction;
13
United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1345 (5th Cir.)
(quoting United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982)), cert.
denied, ___ U.S. ___, 114 S. Ct. 2713, 129 L. Ed. 2d 839 (1994); accord United
States v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir. 1993) ("`It is not enough
. . . that the evidence places the defendant in a climate of activity that reeks
of something foul.'" (quoting United States v. Sacerio, 952 F.2d 860, 863 (5th
Cir. 1992)), cert. denied, ___ U.S. ___, 114 S. Ct. 1865, 128 L. Ed. 2d 486
(1994); Maltos, 985 F.2d at 746 ("Thus, the government may not prove up a
conspiracy merely by presenting evidence placing the defendant in `a climate of
activity that reeks of something foul.'" (quoting United States v. Galvan, 693
F.2d 417, 419 (5th Cir. 1982)).
-9-

that Espy indicated to the informants that they were there to act
as lookouts for the transaction; that their movements outside the
motel room were consistent with those of individuals acting as
lookouts; and that they fled the scene when gunfire erupted inside
the motel room and did not seek assistance.
We have consistently emphasized that each of these facts,
standing alone, does not provide sufficient evidence that Dean and
Cofer knew of the conspiracy and voluntarily joined it. Mere
presence and association alone cannot support a conspiracy
conviction. See, e.g., Velgar-Vivero, 8 F.3d at 241 ("[I]t is not
enough that the defendant merely associated with those
participating in a conspiracy . . . ." (quoting Sacerio, 952 F.2d
at 863)); United States v. Martinez-Moncivais, 14 F.3d 1030, 1034
(5th Cir.) ("[W]e have said that it is irrational for a trier of
fact to infer from a person's mere random presence alone that the
person was a knowing participant in the conspiracy." (emphasis
omitted)), cert. denied, ___ U.S. ___, 115 S. Ct. 72, 130 L. Ed. 2d
27 (1994). Similarly, evidence that a person's behavior coincided
with that characteristic of a lookout cannot, given no other
evidence of guilt, show knowledge of a conspiracy. See Menesses,
962 F.2d at 427 (holding that testimony from FBI agent that
defendant's conduct was consistent with that of a person conducting
countersurveillance was insufficient evidence of defendant's
knowledge of and involvement in conspiracy). Flight from the scene
also is not enough on its own. See United States v. Lopez, 979
-10-

F.2d 1024, 1030 (5th Cir. 1992) (noting that "flight alone is
insufficient to support a guilty verdict"), cert. denied, ___ U.S.
___, 113 S. Ct. 2349, 124 L. Ed. 2d 258 (1993).
That each fact alone cannot be sufficient, however, does not
mean that it is not probative. Indeed, "presence is still a
significant factor to be considered within the context of the
circumstances under which it occurs." Quiroz-Hernandez, 48 F.3d at
867; see also Fierro, 38 F.3d at 768 ("The jury may infer a
conspiracy from circumstantial evidence and may rely upon presence
and association, along with other evidence."); United States v.
Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989) ("The jury may
infer a conspiracy agreement from circumstantial evidence, and may
rely upon presence and association, along with other evidence, in
finding that a conspiracy existed." (citations omitted)). Also,
"evidence of flight is a factor from which a jury could infer
guilty knowledge." Quiroz-Hernandez, 48 F.3d at 866; see also
Lopez, 979 F.2d at 1030 (noting that evidence that a defendant fled
the scene "is relevant and admissible, and the jury could take into
account [a defendant's] flight"). "Acts which are not per se
unlawful lose that character when cumulatively viewed as the
constitutional elements of a conspiracy." United States v. Medina,
887 F.2d 528, 530 (5th Cir. 1989).
Accordingly, although each individual circumstance may not
suffice alone, the combination of circumstances can create
sufficient evidence of guilt. See United States v. Rodriguez, 15
-11-

F.3d 408, 412 (5th Cir. 1994) ("Although individual facts and
incidents, considered separately, might be inconclusive, they `may,
by their number and joint operation, especially when corroborated
by moral coincidences, be sufficient to constitute conclusive
proof.'" (quoting United States v. Lechuga, 888 F.2d 1472, 1476
(5th Cir. 1989) (citations omitted))); United States v. Martinez,
975 F.2d 159, 161 (5th Cir. 1992) (holding that although individual
circumstances on their own might be insufficient, combination of
circumstances may be sufficient to support conviction), cert.
denied, ___ U.S. ___, 113 S. Ct. 1346, 122 L. Ed. 2d 728 (1993);
Medina, 887 F.2d at 531 ("Although, when viewed separately, each of
the . . . circumstances might be considered consistent with
innocent behavior, the cumulative effect of all this evidence and
the reasonable inferences which may be drawn from it [may] enable
a reasonable trier of fact to find [defendant] guilty . . . .").
We have on occasion considered evidence substantially similar
to that supporting Dean and Cofer's convictions. In Menesses,
Espinoza-Seanez, Jackson, and Sanchez-Sotelo, we addressed the
sufficiency of the evidence supporting conspiracy convictions of
"lookouts". In Menesses, the defendant was present and acted
"consistent[ly] with that of a countersurveillance vehicle." In
Espinoza-Seanez, the defendant drove a conspirator to the location
of a car containing drugs, had a mobile phone and carried an amount
of money sufficient to pay for the drugs. In Jackson, the
defendant joined conspirators at a restaurant and "seem[ed] very
-12-

watchful of the comings and goings in the restaurant, constantly
turning his head from left to right." In Sanchez-Sotelo, several
persons including the defendant "drove around the parking lot in a
manner that suggested they were searching for signs of law
enforcement personnel."
Only in Sanchez-Sotelo, however, did we affirm the conviction.
In Menesses, Espinoza-Seanez, and Jackson, on the other hand, we
emphasized that while the evidence before it might support an
inference that the defendant was acting as a "lookout," no evidence
supported the further inference that the defendant had knowingly
agreed to join a drug conspiracy.14 We concluded that under these
circumstances, evidence sufficient to support a reasonable
inference that a defendant was knowingly acting as a lookout was
insufficient support for the further inference that the defendant
14
In Menesses, the court stated that the jury's verdict was "based on
inference upon inference," noting that the evidence provided equal support for
the defendant's claim that he followed and watched over the rental truck as a
favor for a friend who told him that it contained furniture. 962 F.2d at 427.
The court stressed that while "the jury could have credited testimony from FBI
agents to the effect that the Mustang's behavior was consistent with that of a
countersurveillance vehicle," the relevant question was whether the defendant
knew the purpose of his surveillance. Id. The court in Menesses also noted that
while police had conducted "a lengthy sting operation," they had not turned up
any evidence of the defendant's involvement until the very last day. Id.
In Espinoza-Seanez, the court similarly found that "`[t]oo many innocent
scenarios jibe with the sparse record facts.'" 862 F.2d at 538 (quoting United
States v. Gonzalez, 703 F.2d 807, 808 (5th Cir. 1983)). The court found that:
"It is possible, for example, that [the defendant] was driving a friend over to
the restaurant at the friend's request so the friend could `pick up a car,' or
for some other purpose." Id. The court noted that the Government must prove a
defendant's knowing involvement in a conspiracy beyond a reasonable doubt, not
merely that the defendant was "more likely than not" involved. Id.
In Jackson, the court emphasized that while the defendant sat down at a
table with the conspirators and appeared to be "very watchful of the comings and
goings in the restaurant," "there is no evidence indicating that [he] knew the
nature or purpose of the meeting, or even that a large amount of money was
present." 700 F.2d at 185. The court refused to affirm the jury's verdict based
on "mere conjecture and suspicion." Id. at 186.
-13-

knew what he was protecting. In contrast, the government in
Sanchez-Sotelo provided additional evidence, namely the comments of
a conspirator that the defendant was his "business partner" and the
defendant's flight from the scene. This evidence therefore
supplied the "competing facts," Espinoza-Seanez, 862 F.2d at 536,
that had been missing from Menesses, Espinoza-Seanez, and Jackson.
The evidence in the present case clearly establishes that Dean
and Cofer associated with Espy, Smith, and Flowers, and supports
the inference that their presence at the motel was not
coincidental. A police officer testified that he observed Dean and
Cofer walk "back and forth" outside the motel room, behavior he
described as typical for lookouts, while Espy, Smith, and Flowers
were selling drugs inside. Taken in the light most favorable to
the verdict, this evidence supports the inference that Dean and
Cofer were indeed acting as lookouts.
The relevant question then becomes whether the remaining
evidence of Dean and Cofer's involvement adds enough to the
equation to support the further inference that they knew that they
were conducting countersurveillance for a crack cocaine
transaction. Dean and Cofer fled upon hearing gunshots, as did
informant Small, and the jury could reasonably have inferred that
Dean and Cofer feared being found on the scene if someone came to
investigate the gunshots. Taken in the light most favorable to the
verdict, Espy was referring to Dean and Cofer when he stated: "Oh
that's some of my people." His subsequent statement, "I didn't
-14-

know what was gonna happen," thus supports the inference that Espy
had asked Dean and Cofer along to act as surveillance and
protection for the drug deal.15 Moreover, Dean and Cofer fled the
scene and did not stop to seek assistance. Each of these facts
enhances the reasonableness of inferring that Dean and Cofer agreed
to act as look-outs outside the motel room while Espy, Smith, and
Flowers were inside. Consequently, the cumulative evidence
sufficiently supports the jury's conclusion that Dean and Cofer
knew what they were protecting when they acted as lookouts.16
15
Espy's statement to the informants is distinguishable from the
statement that the arrested conspirator made to the DEA in Espinoza-Seanez. The
arrested conspirator in Espinoza-Seanez "told the agents that he was supposed to
make a phone call and then leave the [Pontiac containing marijuana] at an El Paso
restaurant." Espinoza-Seanez, 862 F.2d at 530. "Roughly 40 minutes later, [the
defendant] drove into the parking lot and parked his car several yards from the
Pontiac." Id. However, "[i]t was [the defendant's] actions rather than any
identification of him in [the conspirator's] confession which raised suspicion
of his participation in the conspiracy." Id. at 534. In the present case, as
we have already stated, Espy referred to and therefore identified Dean and Cofer
in his statement.
16
Dean and Cofer argue that a rational jury could not convict them
beyond a reasonable doubt because the Government failed to prove that they either
discussed, saw, or possessed the drugs at some point. We have frequently
affirmed convictions of lookouts in cases of this nature. See, e.g., United
States v. Fierro, 38 F.3d 761, 769 (5th Cir. 1994) (lookout possessed drugs in
furtherance of conspiracy), cert. denied, ___ U.S. ___, 115 S. Ct. 1388, ___ L.
Ed. 2d ___ (1995); United States v. Sparks, 2 F.3d 574, 579 (5th Cir. 1993)
(lookout sold drugs in furtherance of conspiracy), cert. denied, ___ U.S. ___,
114 S. Ct. 720, 126 L. Ed. 2d 684 (1994); United States v. Garcia, 917 F.2d
1370, 1376 (5th Cir. 1990) (co-defendant testified that lookout knew he was
guarding truck containing marijuana); United States v. Arzola-Amaya, 867 F.2d
1504, 1512 (5th Cir.) (lookout was present in house were drugs were found), cert.
denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); United States v.
Kaufman, 858 F.2d 994, 999 (5th Cir. 1988) (lookout possessed drugs in
furtherance of conspiracy), cert. denied, 493 U.S. 895, 110 S. Ct. 245, 107 L.
Ed. 2d 195 (1989); United States v. Erwin, 793 F.2d 656, 664 (5th Cir.) ("[I]n
addition to acting as a look-out, [the defendant] had organizational duties such
as recruiting, delivering pills and collecting money from apartments."), cert.
denied, 479 U.S. 991, 107 S. Ct. 589, 93 L. Ed. 2d 590 (1986). The issue,
however, is not whether there is overwhelming evidence of knowledge, but whether
there is sufficient evidence of that knowledge. See United States v. Soto, 591
F.2d 1091, 1103 (5th Cir.) (upholding lookout's conspiracy conviction in drug
case, even though evidence did not show that defendant had ever discussed, seen,
or possessed drugs, where defendant had acted as a lookout for "several hours"),
-15-

Accordingly, we conclude that a rational jury could have found that
the Government proved beyond a reasonable doubt that Dean and Cofer
knew of a conspiracy and voluntarily joined it.17
2
Flowers contends that "[i]t is very clear from review of the
facts in the record that none of the criteria for linking [him] to
a conspiracy to distribute crack cocaine exists," and that his
actions were "just as consistent with someone who happened to end
up being present in a room where one of his friends made a drug
deal as they are with being a part of the conspiracy itself." The
Government argues that the jury "could properly have concluded from
the evidence that Flowers helped negotiate the transactions, [and]
went to the delivery site to provide security for the money and the
cocaine base."
Taking the evidence in the light most favorable to the jury's
verdict, we know that Flowers was an associate of Espy; that
cert. denied, 442 U.S. 930, 99 S. Ct. 2862, 61 L. Ed. 2d 298 (1979).
Accordingly, we reject Dean and Cofer's argument. Cf. Espinoza-Seanez, 862 F.2d
at 539 ("[T]he circle into which conspirators must fall should not be so small
as to include only those who physically handled the controlled substance
. . . .") (Sneed, J., dissenting).
17
Dean and Cofer also contend that insufficient evidence supports their
convictions for the possession with intent to distribute, crack cocaine. To
sustain a defendant's conviction on an aiding-and-abetting charge, the evidence
must support beyond a reasonable doubt the inference that the defendant "knew
that a drug transaction was occurring, that she associated herself with the
actors involved in the transaction, that she participated in the venture with the
desire that the venture succeed, and that she perform some designed or intended
action to achieve the goal of the crime." United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir. 1995). Having held that a rational jury could conclude beyond
a reasonable doubt that Dean and Cofer knew the nature of the meeting in the
motel room, we also hold that a rational jury could have concluded beyond a
reasonable doubt that Dean and Cofer aided and abetted the possession with intent
to distribute crack cocaine.
-16-

Flowers spoke to informant Small on the telephone, arranging the
drug transaction for Espy; that Flowers either met Espy at the
motel where Espy was to sell crack cocaine to the informants, or
arrived there with Espy; that Flowers was present inside the motel
room during the transaction; and that the government found cocaine
taped to Flower's ankle.
The Government's tape recording of the telephone conversation
between Flowers and Small alone is sufficient evidence that Flowers
knew of the conspiracy and voluntarily joined it. See United
States v. Lopez, 979 F.2d 1024, 1029 (5th Cir.), cert. denied, ___
U.S. ___, 113 S. Ct. 2349, 124 L. Ed. 2d 258 (1993) (noting that
Government provided evidence that defendant had "expressly
negotiated the terms of the drug transaction," and holding that
"[t]his alone is clearly sufficient evidence to justify a
conviction for conspiracy"); United States v. Fragoso, 978 F.2d
896, 902 n.6 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.
1664, 123 L. Ed. 2d 282 (1993) (holding that evidence showing that
defendant's conversations "included numerous references to cocaine
as the subject of the transaction" constituted "more than enough
evidence for the jury to infer that [the defendant] had conspired
with [another] to possess cocaine with intent to distribute it");
United States v. Greenwood, 974 F.2d 1449, 1463 (5th Cir. 1992),
cert. denied, ___ U.S. ___, 113 S. Ct. 2354, 124 L. Ed. 2d 262
(1993) (holding that evidence showing that defendant arranged a
drug transaction over telephone constituted sufficient evidence of
-17-

conspiracy to possess drugs with intent to distribute). We
conclude, therefore, that a rational jury could have convicted
Flowers beyond a reasonable doubt.
B
Smith and Flowers also contend that insufficient evidence
supports their convictions for using or carrying a firearm during
a drug-trafficking crime, each arguing that he did not carry a gun
during the drug transaction and did not know that Espy was carrying
one. The Government contends that the evidence, taken in the light
most favorable to the jury's verdict, supports the inference that
"Smith and Flowers knew prior to the display of the gun that Espy
was carrying it."
Under з 924(c), the Government must prove that the defendant
(1) committed the underlying offense, and (2) knowingly used or
carried a firearm during and in relation to that crime. United
States v. Speer, 30 F.3d 605, 612 (5th Cir.), cert. denied, ___
U.S. ___, 115 S. Ct. 603, 130 L. Ed. 2d 514 (1994). "`Use' does
not require the government to prove actual use such as the
discharging of or brandishing of the weapon. The government may
meet its burden by simply showing that the weapons facilitated, or
could have facilitated, the drug trafficking offense." United
States v. Pace, 10 F.3d 1106, 1117 (5th Cir. 1993), cert. denied,
___ U.S. ___, 114 S. Ct. 2180, 128 L. Ed. 2d 899 (1994).
The Government argues that the jury could have concluded
beyond a reasonable doubt that Smith and Flowers knew that Espy was
-18-

carrying a gun before they entered the motel room based on evidence
that Espy could not have driven or sat with the gun concealed, due
to the size of the gun, and that the gun case was in the trunk of
his car. The Government, however, failed to show at trial that
Espy arrived at the motel in the same car as either Smith or
Flowers. Thus, Espy may have concealed the gun on his person after
arriving at the motel, but prior to joining Smith and Flowers.
The Government contends that: "Even if the jury believed that
Smith and Flowers did not know about or agree to the presence of
the gun, they could have held them accountable as co-conspirators."
Under the rule established by the Supreme Court in Pinkerton v.
United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946),
"`[a] party to a conspiracy may be held responsible for a
substantive offense committed by a coconspirator in furtherance of
a conspiracy, even if that party does not participate in or have
any knowledge of the substantive offense.'" United States v.
Jensen, 41 F.3d 946, 955-56 (5th Cir. 1994) (quoting United States
v. Garcia, 917 F.2d 1370, 1377 (5th Cir. 1990)). Thus, "Pinkerton
permit[s] a defendant to be convicted under section 924(c) based on
a co-conspirator's possession of a weapon during a drug trafficking
crime even if the defendant was unaware of the conspiratory
possession." United States v. Mendoza-Burciaga, 981 F.2d 192, 198
(5th Cir. 1992) (citing United States v. Raborn, 872 F.2d 589, 596
(5th Cir. 1989)), cert. denied, ___ U.S. ___, 114 S. Ct. 356, 126
-19-

L. Ed. 2d 320 (1993).18
Count 1 of the indictment charged that "James Earl Cofer,
George Dean, Kenneth Earl Flowers and Kenneth Dewayne Smith,
Defendants, and Fredericke Dion Espy, did knowingly and
intentionally combine, conspire, confederate and agree together,
and with other persons known and unknown," to possess with the
intent to distribute cocaine base. The jury found both Smith and
Flowers guilty under Count 1; Smith does not challenge his
conspiracy conviction, and we have affirmed Flowers' conspiracy
conviction. Espy was shot during the police raid and died on the
scene, and therefore was never convicted of a 924(c) violation.
However, a reasonable jury could have concluded that Espy, in
furtherance of the conspiracy to possess with the intent to
distribute crack cocaine, knowingly used or carried a firearm
during and in relation to a drug-trafficking crime. Thus, under
Pinkerton, Smith and Flowers were properly convicted for violating
з 924(c) based on Espy's violation of з 924(c) in furtherance of
18
"However, a substantive conviction cannot be upheld solely under
Pinkerton unless the jury was given a Pinkerton instruction." United States v.
Crain, 33 F.3d 480, 486 n.7 (5th Cir. 1994) (citing United States v. Basey, 816
F.2d 980, 998 (5th Cir. 1987)), cert. denied, ___ U.S. ___, 115 S. Ct. 1142, 130
L. Ed. 2d 1102 (1995). "[A]t a minimum, a proper Pinkerton instruction should
at least state clearly that the defendant can be convicted of a substantive crime
committed by his co-conspirator in furtherance of the conspiracy." Id. (citing
Basey, 816 F.2d at 998 & n.35). The district court did give a Pinkerton
instruction, in which it told the jury that "a conspiracy is a kind of
`partnership,' so that under the law each member is bound by or responsible for
the acts and statements of every other member made in pursuance of their unlawful
scheme."
-20-

the conspiracy,19 even though they may have been unaware that Espy
was armed before they accompanied him into the motel room.20
19
In United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990), we affirmed
a defendant's conviction for possession of cocaine without ruling on the question
of whether sufficient evidence established that he had ever had actual or
constructive possession of the cocaine. We held that: "Having found [the
defendant] guilty of conspiring to possess cocaine with intent to distribute, the
jury could properly have found [him] guilty of possession under the vicarious
liability doctrine of Pinkerton . . . ." Id. at 1181. Although all of the
defendant's co-conspirators were either unindicted or acquitted on the conspiracy
and possession charges, we concluded that: "Since a reasonable jury could have
found that one of [the defendant's] coconspirators had possession of the cocaine,
the evidence is sufficient to sustain [the defendant's] conviction." Id.; see
also United States v. Nino, 967 F.2d 1508, 1514 (11th Cir. 1992) ("[T]he rules
of co-conspirator liability as explained in Pinkerton and the Sentencing
Guidelines do not require that the firearm possessor be a charged co-conspirator
when that co-conspirator dies or is otherwise unavailable for indictment."),
cert. denied, ___ U.S. ___, 113 S. Ct. 1432, 122 L. Ed. 2d 799 (1993).
20
For a defendant to be found guilty under Pinkerton for an offense
committed by a co-conspirator, the offense must also have been reasonably
foreseeable to the defendant. United States v. Maceo, 947 F.2d 1191, 1198 (5th
Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1510, 117 L. Ed. 2d 647
(1992). We have observed repeatedly that firearms are the tools of the trade of
those engaged in illegal drug activity. United States v. Aguilera-Zapata, 901
F.2d 1209, 1215 (5th Cir. 1990). In United States v. Elwood, 993 F.2d 1146 (5th
Cir. 1993), we held that the it was foreseeable for the purposes of Pinkerton
that a defendant's co-conspirators would carry firearms during a drug transaction
because a substantial quantity of drugs, 2027 grams of cocaine, was involved.
Id. at 1148, 1151. Other circuits have also emphasized a connection between the
amount of drugs involved in a transaction, and hence the amount of money, and the
foreseeability for Pinkerton purposes of a co-conspirator's using a weapon during
the transaction. See, e.g., United States v. Edwards, 36 F.3d 639, 644 (7th Cir.
1994) (stating that "[w]e have held that the inherently violent nature of the
drug trade makes the presence of firearms in large transactions reasonably
foreseeable," and offering as examples of such large transactions a $39,000 and
a $60,000 deal); United States v. Williams, 31 F.3d 522, 526 (7th Cir. 1994)
(stating that "[b]ecause the drug industry is, by nature, a violent business, the
presence of firearms in transactions involving sizeable quantities of drugs is
reasonably foreseeable," and offering as examples a $39,000 and a $60,000 deal);
United States v. Odom, 13 F.3d 949, 959 (6th Cir.) ("The nexus between drugs and
firearms has been acknowledged when large quantities of cocaine are involved in
a conspiracy."), cert. denied, ___ U.S. ___, 114 S. Ct. 1859, 128 L. Ed. 2d 481
(1994); United States v. Martinez, 958 F.2d 217, 219 (8th Cir. 1992) ("Certainly,
it was reasonably foreseeable that one of [the defendant's] co-conspirators might
carry a weapon in a transaction involving $9,600 worth of cocaine."); United
States v. Cummings, 937 F.2d 941, 945 (4th Cir.) ("When an individual conspires
to take part in a street transaction involving a kilogram of cocaine worth
$39,000, it certainly is quite reasonable to assume that a weapon of some kind
would be carried."), cert. denied, 502 U.S. 948, 112 S. Ct. 395, 116 L. Ed. 2d
345 (1991). We do not go as far as to presume that the presence of a weapon in
a drug transaction is always foreseeable. See United States v. Castaneda, 9 F.3d
761, 766 (9th Cir. 1993) ("Although courts recognize the nexus between drugs and
firearms, there is no presumption of foreseeability, and the burden of
foreseeability remains on the government."), cert. denied, ___ U.S. ___, 114 S.
-21-

III
Smith and Flowers next argue that there was a material
variance between the indictment's identification of the weapon used
in the drug trafficking offense and the Government's identification
of the weapon at trial. The indictment identified the weapon as
"an Intratech semi-automatic pistol, Model DC9, .9 millimeter,
serial number DO23800." At trial, the Government identified the
gun once as an "Intratech 9," and later as "an Intratech 9, 9
millimeter, semi-automatic pistol." The Government contends that
its referring to a .9 millimeter gun as a 9 millimeter gun did not
harm Smith and Flowers in any way.
"A material variance occurs when a variation between proof and
indictment occurs, but does not modify an essential element of the
offense charged." United States v. Thomas, 12 F.3d 1350, 1357 (5th
Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 1861, 128 L. Ed. 2d
483 (1994). In determining whether a material variance resulted in
prejudice, we employ a harmless error analysis. Id. at 1357;
United States v. Lokey, 945 F.2d 825, 832 (5th Cir. 1991). Thus,
to obtain a reversal based on the alleged variance, Smith and
Flowers must show that the variance affected their substantial
rights. Thomas, 12 F.3d at 1358. "The concerns underlying our
cases on variance are to ensure that the indictment notifies a
defendant adequately to permit him to prepare his defense, and does
Ct. 1564, 128 L. Ed. 2d 210 (1994). However, Smith and Flowers were involved in
a $5,000 transaction, and thus a rational jury could have concluded beyond a
reasonable doubt that it was foreseeable to them that Espy would be carrying a
gun.
-22-

not leave the defendant vulnerable to a later prosecution because
of failure to define the offense with particularity." United States
v. Hernandez, 962 F.2d 1152, 1159 (5th Cir. 1992).
Neither Smith nor Flowers alleges that the indictment either
failed to provide him with sufficient notice to prepare his defense
or would leave him vulnerable to a later prosecution. In fact,
neither shows how the variance between the identifications of the
gun affected his substantial rights in any way.21 We conclude,
therefore, that any error in the Government's identification of the
gun at trial was harmless.
IV
Smith contends that the district court erred in overruling his
objections to the Government's attorneys' and witnesses' referring
to him by his nickname or alias, "Crazy K," in front of the jury.
Before trial, the district court denied Smith's motion in limine to
suppress evidence of his nickname. "We review the district court's
determination that this [alias] evidence was more probative that
prejudicial for an abuse of discretion." United States v. Stowell,
947 F.2d 1251, 1255 (5th Cir. 1991), cert. denied, 503 U.S. 908,
112 S. Ct. 1269, 117 L. Ed. 2d 497 (1992).
During trial, Jackie Small and Calvin Thomas, the government
21
Smith and Flowers do allege that the erroneous descriptions of the
gun confused the jury and made the jury believe that Espy was carrying a much
more powerful gun than that described in the indictment. The gun was identified
in the indictment as bearing the serial number "DO23800," however, and after the
gun was introduced into evidence, a witness for the prosecution read the serial
number aloud as "DO23800." The jury charge identified the gun by the same serial
number. Thus, the jury was aware that the gun entered into evidence at the trial
was the same gun mentioned in both the indictment and the jury charge.
-23-

informants, both referred to Smith as "Crazy K" in their testimony;
Flowers' attorney used Smith's nickname when questioning Small; and
the Government attorney used Smith's nickname when questioning
Thomas.22 The Government contends that allowing the informants to
use Kenneth Smith's nickname was necessary to ensure accurate
identification because Small and Thomas knew Smith only by his
nickname and knew Flowers as "Ken." The Government further argues
that the references were limited, and that the name "Crazy K" is
not suggestive of a criminal disposition.
While we have held that the use of a defendant's nickname in
an indictment is appropriate if a codefendant once knew the
defendant by that name, see United States v. Taylor, 554 F.2d 200,
203 (5th Cir. 1977), we have yet to address the use of a
defendant's nickname in the presentation of evidence to the jury.
Those circuits that have addressed this issue have held that such
use of a defendant's nickname is appropriate if a witness once knew
22
Jackie Small, one of two government informants that had arranged to
buy crack cocaine from Fred Espy in a hotel room, testified that she had met "Ken
and Crazy K" before the drug transaction. The Government attorney responded by
asking Small: "Can you tell me, do you see Crazy K in the courtroom today?"
Small indicated Smith. Small stated that "Ken and Crazy K, the other Kenneth"
entered the room with Fred Espy, and later that: "Crazy K had pulled out the
stuff after he looked around, and then they told me to go get the money, and I
left out." At another point, Flowers' attorney asked Small: "As a matter of
fact, you didn't know that Crazy K as you have referenced is, in fact, Kenneth
Smith?" Small responded that she did not. Calvin Thomas, the other government
informant, testified that "a guy named Crazy K" had delivered the crack cocaine
to the hotel room. He later stated that "Crazy K brought the stuff out," and the
Government's attorney asked him: "What happened after Crazy K brought the stuff
out?"
-24-

the defendant by the nickname.23 Small and Thomas knew Smith as
"Crazy K," and the attorneys' references to Smith as "Crazy K" were
limited to their questioning of these two witnesses. The
witnesses' and attorneys' use of Smith's nickname aided them in
their identification of Smith and helped them to distinguish
between Smith and Flowers, who share the first name "Kenneth."
Furthermore, as the Government notes, the nickname "Crazy K" is not
necessarily suggestive of a criminal disposition. For these
reasons, we hold that the district court did not err or abuse its
discretion in overruling Smith's objections to the Government's
attorneys' and witnesses' referring to him as "Crazy K."
V
Dean, Cofer, and Flowers further contend that the district
court abused its discretion in refusing to allow into evidence,
under Rule 804(b)(3) of the Federal Rules of Evidence, Smith's
statement during plea negotiations that Dean, Cofer, and Flowers
had not known of the proposed drug exchange at the time Smith,
Flowers, and Espy entered the motel room. Smith claimed during
negotiations that only he and Espy had known anything about the
23
See United States v. Smith, 918 F.2d 1501, 1511 (11th Cir. 1990)
(holding that where those within the "society" of the conspiracy knew defendant
as "Boss" and "Boss Man," "[t]here was no error in the revelation of this fact
nor in references to him by witnesses who knew him only by these monikers"),
cert. denied, 502 U.S. 849, 112 S. Ct. 151, 116 L. Ed. 2d 117 (1991); United
States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir.) (finding that forbidding
witness to refer to defendants' nicknames would be unduly burdensome where
defendants used nicknames to identify themselves in witness' presence), cert.
denied, 469 U.S. 1028, 105 S. Ct. 448, 83 L. Ed. 2d 373 (1984); United States
v. Jorge-Salon, 734 F.2d 789, 791-92 (11th Cir.) ("The use of an alias in an
indictment and in evidence is permissible if it is necessary to connect the
defendants with the acts charged."), cert. denied, 469 U.S. 869, 105 S. Ct. 215,
83 L. Ed. 2d 145 (1984).
-25-

drug deal. At trial, however, Smith objected to the introduction
of these statements.
Rule 804(b)(3) of the Federal Rules of Evidence creates a
limited exception to the hearsay rule for statements against the
declarant's penal interest. To be admissible under Rule 804(b)(3),
such a declaration must meet the following three-part test:
"(1) The declarant must be unavailable; (2) The statement
must so far tend to subject the declarant to criminal
liability that a reasonable person in his position would
not have made the statement unless he believed it to be
true; and (3) The statement must be corroborated by
circumstances clearly indicating its trustworthiness."
United States v. Flores, 985 F.2d 770, 774 n.10 (5th Cir. 1993)
(quoting United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th
Cir. 1981), cert. denied, 459 U.S. 834, 103 S. Ct. 77, 74 L. Ed. 2d
75 (1982)). We will uphold the district court's determination as
to the trustworthiness of an out-of-court statement unless it is
clearly erroneous. United States v. Briscoe, 742 F.2d 842, 846-47
(5th Cir. 1984).
What a court may or must consider in determining the
trustworthiness of a statement for the purposes of Rule 804(b)(3)
is governed in part by the Supreme Court's ruling in Idaho v.
Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).
In Wright, the Court held that unless a hearsay statement is
admissible under a "firmly rooted" hearsay exception, and thus
presumed to be reliable, the Confrontation Clause of the Sixth
Amendment requires that the party seeking to admit the statement
provide "particularized guarantees of trustworthiness" to the
-26-

court. Flores, 985 F.2d at 775. In Flores, we noted that:
"Although some statements that fall within the declaration-against-
penal-interest concept may be inherently reliable, the concept
itself `defines too large a class for meaningful Confrontation
Clause analysis.'" Id. at 775-76 (quoting Lee v. Illinois, 476
U.S. 530, 544 n.5, 106 S. Ct. 2056, 2064 n.5, 90 L. Ed. 2d 514
(1986)). We held in Flores that "a confession by an accomplice
inculpating a defendant that is being offered as a declaration
against penal interest is not a firmly rooted exception" to the
hearsay rule, and thus not inherently reliable. Id. at 775.
In Flores, we did not consider whether a statement by an
accomplice exculpating a defendant falls under a firmly rooted
exception to the hearsay rule.24 However, in United States v.
Sarmiento-Perez, 633 F.2d 1092 (5th Cir. Unit A Jan. 1981), we
stated that "a clear distinction must be drawn between statements
against penal interest that are offered to exculpate a criminal
defendant, as against those that are offered to inculpate him."
Id. at 1100. We continued: "The admission under Rule 804(b)(3) of
24
In Flores, we concluded that a First Circuit case and a Second
Circuit case, each holding that the declaration-against-penal-interest exception
is a "firmly rooted" exception to the hearsay rule, could not be viewed as
authoritative because they were decided before Lee. Since we decided Flores,
many courts have held that Rule 804(b)(3) is a firmly rooted exception to the
hearsay rule. See, e.g., United States v. Innamorati, 996 F.2d 456, 474 n.4 (1st
Cir.) ("Most courts have concluded that the declaration against interest
exception embodied in Fed.R.Evid. 804(b)(3) is a `firmly rooted' exception to the
hearsay rule."), cert. denied, ___ U.S. ___, 114 S. Ct. 409, 126 L. Ed. 2d 356
(1993); Jennings v. Maynard, 946 F.2d 1502, 1505 (10th Cir. 1991) (referring to
statement-against-penal-interest exception as "firmly rooted hearsay exception");
United States v. York, 933 F.2d 1343, 1363-64 & n.5 (7th Cir.), cert. denied, 502
U.S. 916, 112 S. Ct. 321, 116 L. Ed. 2d 262 (1991) (describing exception as
"firmly established" and holding that admissibility under Rule 804(b)(3)
satisfies Confrontation Clause).
-27-

against-interest-of-declarant hearsay statements that inculpate a
criminal defendant results in the diminution of rights
traditionally viewed as essential and fundamental components of an
accused person's right of confrontation." Id.; accord United
States v. Costa, 31 F.3d 1073, 1078 (11th Cir. 1994) (stating that
"inculpatory statements implicate the confrontation rights of the
accused whereas exculpatory statements do not").
Because the admissibility of Smith's statement did not
implicate his confrontation rights, or those of any other
defendant, the district court properly considered any corroborating
circumstance that clearly indicated that the statement was
trustworthy. In their briefs on appeal, Flowers and Cofer claim
that the evidence of Smith's guilt is sufficient corroboration, and
cite no evidence corroborating Smith's statement that Flowers,
Dean, and Cofer knew nothing of the transaction. Given the
circumstances of this case, however, Smith's guilt does not
preclude the other defendants' involvement, and therefore does not
sufficiently corroborate Smith's exculpatory statement. The
evidence that Flowers knowingly conspired with Smith and Espy to
possess and distribute the crack cocaine is strong. In addition,
Smith made many questionable claims during his plea negotiations.
Smith claimed that he had never seen crack cocaine before the
transaction, that he had not known what crack cocaine was until
that time, that he was not the person who returned the telephone
-28-

call that Small made to Espy,25 and that Dean and Cofer never got
out of their vehicle throughout the drug transaction.26
When Smith's attorney objected to the introduction of Smith's
statement as to Dean, Cofer, and Flowers' lack of involvement in
the transaction, the district court responded that "the Court does
not find that the corroborating circumstances clearly indicate the
trustworthiness of the statement, and in fact the Court finds to
the contrary, and I will exclude the statement." Given the
evidence of Dean, Cofer, and Flowers' involvement in the conspiracy
and the questionable nature of the other statements Smith made
during his plea negotiations, the district court's determination
was not clearly erroneous.
VI
Dean, Cofer, Smith, and Flowers each challenge the district
court's sentence. We review the factual findings made by the
district court at the sentencing hearing for clear error. United
States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995). If the
defendant failed to object below to the factual findings, we will
only review for plain error. United States v. Guerrero, 5 F.3d
868, 871 (5th Cir. 1993). We review the district court's
application of the sentencing guidelines de novo. United States v.
25
Later, Smith recanted his statements about his unfamiliarity with
crack cocaine and the telephone conversation with Small.
26
In his brief on appeal, Dean does cite evidence of his own lack of
involvement in support as corroboration of Smith's statement. In light of the
circumstances surrounding Smith's statement, however, this evidence is
insufficient to establish its trustworthiness.
-29-

Anderson, 987 F.2d 251, 257 (5th Cir.), cert. denied, ___ U.S. ___,
114 S. Ct. 157, 126 L. Ed. 2d 118 (1993).
The district court enhanced Dean and Cofer's sentences on the
grounds that they possessed a dangerous weapon in furtherance of
the conspiracy. See United States Sentencing Commission,
Guidelines Manual, з 2D1.1(b)(1) (Nov. 1994) (providing for
sentence enhancement for possession of dangerous weapon during drug
offenses). Dean and Cofer argue on appeal that Espy's possession
of a gun during the drug transaction was not reasonably foreseeable
to them, nor within the scope of their agreement to join the
conspiracy, and thus not attributable to them under section 1B1.3
of the Sentencing Guidelines. See U.S.S.G. з 1B1.3 (providing that
defendant may be held accountable at sentencing for reasonably
foreseeable conduct of others in furtherance of the jointly
undertaken criminal activity). "When a defendant objects to
particular findings in the presentence report, the sentencing court
must resolve the specifically disputed issues of fact if intends to
use those facts as a basis for its sentence." United States v.
Smith, 13 F.3d 860, 867 (5th Cir.) (citing United States v.
Rodriguez, 897 F.2d 1324, 1327 (5th Cir.), cert. denied, 498 U.S.
857, 111 S. Ct. 158, 112 L. Ed. 2d 124 (1990)), cert. denied, ___
U.S. ___, 114 S. Ct. 2151, 128 L. Ed. 2d 877 (1994). Because
neither Dean nor Cofer objected at sentencing on the grounds that
Espy's possession of a gun during the drug transaction was not
reasonably foreseeable to them, or that it was not within the scope
-30-

of their jointly undertaken criminal activity, we accordingly see
no plain error in the district court's finding. See United States
v. Guerrero, 5 F.3d 868, 871 (5th Cir. 1993) ("Questions of fact
`capable of resolution by the district court upon proper objection
at sentencing can never constitute plain error.'" (quoting United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991), cert. denied, 500
U.S. 924, 111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991)), cert. denied,
___ U.S. ___, 114 S. Ct. 1111, 127 L. Ed. 2d 422 (1994).
Dean, Cofer, Smith, and Flowers also argue that the district
court erroneously found that the total amount of crack cocaine that
the police found in the motel room and on Smith, Flowers, and Espy
weighed over 150 grams, and that the error resulted in an
inaccurate sentencing calculation under the Sentencing Guidelines.
Relying on the results of tests conducted by an independent
chemist, they contend that the weight of the drugs seized by the
police was 143.683 grams rather than 154.32 grams, the weight given
by the government chemist. "Information used in sentencing must
have some indicia of reliability." United States v. Kinder, 946
F.2d 362, 366 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.
Ct. 1677, 118 L. Ed. 2d 394 (1992). However, "[t]he district court
has wide discretion in evaluating the reliability of the
information and whether to consider it." Id. The independent
chemist weighed the crack cocaine at least a month after the
government chemist's tests, and the district court attributed the
different results to loss during the testing process. Given the
-31-

evidence supporting the reliability of the government chemist's
report,27 the district court's conclusion was not clearly
erroneous.28

Smith and Cofer argue that the district court erroneously
concluded that Espy's possession of 24.5 grams of crack cocaine in
his pants and underwear, and Flowers' possession of .82 grams of
crack cocaine in his sock,29 constituted "relevant conduct"
attributable to them. Flowers makes the same argument with regard
to the drugs found in Espy's possession and the 5.3 grams of crack
cocaine found in Smith's underwear; and Dean with respect to the
drugs found in Espy's possession, the 5.3 grams of crack cocaine
found on Smith, and the .82 grams of crack cocaine found on
Flowers. Under section 1B1.3 of the Sentencing Guidelines, "the
defendant is responsible for all quantities of contraband with
which he was directly involved and, in the case of a jointly
undertaken criminal activity, all reasonably foreseeable quantities
of contraband that were within the scope of the criminal activity
that he jointly undertook." U.S.S.G. з 1B1.3(a)(1)(B) (1994). The
27
The government chemist testified at the sentencing hearing,
describing his professional qualifications and the accuracy of his testing
procedure.
28
See United States v. Tucker, 20 F.3d 242, 243 (7th Cir. 1994)
(attributing weight loss in crack cocaine sample to evaporation); United States
v. Thomas, 11 F.3d 620, 631-32 (6th Cir. 1993) (affirming district court's
reliance on government chemist's weighing of crack cocaine rather than
independent weighing where differing results were attributable to loss from
testing and evaporation), cert. denied, ___ U.S. ___, 114 S. Ct. 1570, 128 L. Ed.
2d 214 (1994).
29
The crack cocaine found in Flowers' sock was wrapped differently than
that placed on the bed, and was of a different purity.
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commentary to section 1B1.3 explains that "a defendant is
accountable for the conduct (acts and omissions) of others that was
both: (i) in furtherance of the jointly undertaken criminal
activity; and (ii) reasonably foreseeable in connection with that
criminal activity." Id. cmt. 2.
The district court found that the total amount of cocaine
present during the transaction was reasonably foreseeable to Dean,
Cofer, Smith, and Flowers, stating that "each of the defendants
reasonably should have known that the amounts [of crack cocaine]
found [in the motel room and on Espy, Smith, and Flowers] were
involved in the transaction and would be attributable to them."
However, the court's finding of foreseeability is irrelevant
without concurrent findings that Dean, Cofer, Smith, and Flowers
each agreed to a jointly undertaken criminal activity with his co-
conspirators involving the additional amounts of crack cocaine, and
that the conspirators were carrying the additional amounts in
furtherance of such an agreement. See United States v. Evbuomwan,
992 F.2d 70, 74 (5th Cir. 1993) (holding that foreseeability of
codefendants' conduct was irrelevant absent concurrent findings
that defendant agreed to jointly undertake criminal activity with
codefendants and that codefendants' conduct was in furtherance of
that agreement).
In United States v. Smith, 13 F.3d 860 (5th Cir.), cert.
denied, ___ U.S. ___, 114 S. Ct. 2151, 128 L. Ed. 2d 877 (1994), we
reversed a defendant's sentence because the district court failed
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to expressly find that the defendant had agreed to jointly
undertake criminal activity involving additional amounts of crack
cocaine. The defendant in Smith was convicted of conspiring with
one of his three codefendants to possess with the intent to
distribute crack cocaine, but he was sentenced based on both the
amount of crack cocaine that he and his co-conspirator sold to an
undercover agent and additional amounts that police found on the
floor of the house where the drug transaction had taken place. We
held that:
Before the trial court in this case could sentence [the
defendant] based on the additional cocaine, it must have
made specific findings, supported by a preponderance of
the evidence, that [the defendant] agreed to a jointly
undertaken criminal activity with [his co-conspirator]
and [either of the other defendants] involving the
greater amount of cocaine, and that [the defendant] could
have reasonably foreseen the amount of cocaine that would
be involved in such an undertaking.
Id. at 867. The court held that absent a finding that the
defendant agreed to a "jointly undertaken criminal activity" with
his co-conspirator and at least one of their codefendants that
involved the greater amount of crack cocaine, "it is irrelevant
whether [the defendant] knew or foresaw that greater amounts of
cocaine were in the house." Id. Based on our holdings in
Evbuomwan and Smith, we must therefore vacate Dean, Cofer, Smith,
and Flowers' sentences and remand to the district court for
specific findings as to whether any of the conspirators' agreements
involved more than five ounces of crack cocaine, and whether Espy,
Smith, and Flowers were carrying additional amounts of crack
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cocaine in furtherance of such agreements.
Lastly, Smith argues that the district court erred in failing
to consider at sentencing his acceptance of responsibility for his
conduct.30 Under section 3E1.1(a) of the Sentencing Guidelines,
however, such consideration is due only if a defendant "clearly
demonstrates acceptance of responsibility for his offense."
U.S.S.G. з 3E1.1(a). As the district court stated, Smith "has not
accepted responsibility for his full involvement in the offense,
and particularly since he has denied any conspiracy, was also
denying any involvement with the amount of drugs involving the
other conspirators." Smith's conduct has not clearly demonstrated
acceptance of responsibility for his offense. See United States v.
Brown, 49 F.3d 135 (5th Cir. 1995) (holding that defendant was "not
eligible" for consideration under section 3E1.1 because she "denied
her guilt and forced the government to go to trial"); U.S.S.G.
з 3E1.1 cmt. 1(a) ("[A] defendant who falsely denies, or
frivolously contests, relevant conduct that the court determines to
be true has acted in a manner inconsistent with acceptance of
responsibility . . . ."). Thus, the district court's decision not
to credit Smith with having accepted responsibility for his offense
for sentencing purposes was not clearly erroneous.
30
Smith also claims that the district court abused its discretion in
refusing to grant him a downward departure based on his being seventeen at the
time he was convicted of an offense that the district court used to enhance his
sentence. We do not review such denials for abuse of discretion. We review the
district court's refusal to depart from the guidelines only if the denial was a
violation of the law. Navarette v. United States Parole Comm'n, 34 F.3d 316, 319
(5th Cir. 1994). Smith makes no such argument.
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VII
For the foregoing reasons, we AFFIRM George Dean, James Earl
Cofer, Kenneth Dewayne Smith, and Kenneth Earl Flowers'
convictions, VACATE their sentences, and REMAND to the district
court for resentencing in accordance with this opinion.
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