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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-40016
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
JERRY WASHINGTON and HERBERT EDWARD JAMES,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Texas
(February 2, 1995)
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
In this direct criminal appeal, Defendants-Appellants Herbert
James and Jerry Washington complain that the district court
committed several errors, some during their trial and others during
their sentencing on numerous counts arising from their involvement
in a drug distribution ring. Finding no error, we affirm their
convictions and sentences in all respects.
I

FACTS AND PROCEEDINGS
James ran a drug distribution ring (the "Ring") from his home

in Port Arthur, Texas. To assist in administering various aspects
of his business, James retained several "employees," including
Washington, Leonard Provost, and Michael Jones. Although the Ring
primarily sold small quantities of cocaine base ("crack") to users
in that area, over the years it developed a relatively large
clientele.
The Ring was finally "busted" as the result of a sting
operation orchestrated by the Jefferson County Narcotics Task Force
(the "Task Force") which comprised both local and federal
enforcement authorities, including the Drug Enforcement Agency
("DEA"). During several months of surveillance and undercover
work, the Task Force was able to gather evidence sufficient to
constitute probable cause to conclude that James, Washington, and
Provost were involved in a conspiracy to possess and distribute
crack.
Although the Task Force had long suspected that the Ring sold
crack from James' home, authorities had been unable to obtain
sufficient evidence to arrest James and his cohorts. The Task
Force's luck began to change in May 1992, when a confidential
informant ("CI") who used to traffick in narcotics herself
contacted a Task Force member, Detective Robert Cartwright,
offering information regarding the Ring. But even after obtaining
this information, the Task Force still lacked sufficient evidence
to arrest and prosecute members of the Ring.
In July 1992, the Task Force obtained another tip from an
2

informant,1 reporting that the informant had recently observed
James selling cocaine from his residence. Based on this
information, the police obtained a warrant and searched James'
residence, recovering several weapons, ammunition for those
weapons, and a clear plastic baggie containing a powdery residue
that subsequent tests revealed to be cocaine. Although the police
seized the weapons and the baggie, they made no arrests at that
time.
In September 1992, the CI again called the Task Force and
offered additional information regarding the Ring. This time,
Cartwright put the CI in contact with DEA Special Agent Maurice
King, another member of the Task Force. After speaking with Agent
King, the CI agreed to participate in an undercover sting operation
designed to infiltrate the Ring.
The CI knew James and believed that she could convince him to
sell crack directly to Agent King. The CI's husband had a nephew
living in Louisiana who was roughly the same age as Agent King and
who was on probation following his conviction for trafficking in
narcotics. The plan was to have Agent King pose as the nephew,
with the CI explaining to James that her husband's nephew had
recently moved from Louisiana and was going to help her sell crack
in Port Arthur.
In late October 1992, the plan was set in motion when the CI
and Agent King went to James' house to purchase crack. As planned,
1It is unclear from the record whether this informant was the
CI or another person.
3

the CI approached James and offered to purchase a quarter ounce of
crack. Posing as the nephew, Agent King waited in a car in front
of James' residence until the CI summoned him to come inside so
that she could introduce him to James and his associates,
Washington and Provost. After presenting Agent King as her
husband's nephew, the CI explained that in the future he would be
the person who would purchase and pick up crack for her.
Over the next month or so, the CI and Agent King returned to
James' residence several times to order and pick up crack from the
Ring. All told, they paid for more than 100 grams of crack,
actually taking delivery of over half of that amount. In every
instance, the order for or the delivery of the crack, or both, took
place in either the garage or the kitchen of James' home.
One objective of the investigation was to have Agent King deal
directly with James and other members of the Ring rather than
having all transactions funnelled through the CI. Early in the
investigation Agent King had completed a deal with James'
assistant, Provost; it was not until several transactions later
(the one that turned out to be the last successful transaction)
that Agent King was able to obtain crack directly from James.
Once Agent King was able to deal directly with James, the
focus of the Task Force investigation shifted to determining
whether the Ring could supply a larger quantity of crack. Up to
that point, neither the CI nor Agent King had placed an individual
order for more than one-half ounce of crack, so Agent King and the
CI set out to determine whether James could supply at least two
4

ounces of crack. The CI offered James $1200 for that amount, and
James accepted the offer.
At this point, however, the undercover plan went awry. Agent
King stopped by James' house to pay for the two ounces of crack,
but mistakenly gave James $1600 rather than the $1200 negotiated by
the CI. As a result, James became suspicious and confronted the
CI, telling her that he thought Agent King was a policeman.
Concerned that Agent King's cover had been blown, the Task Force
decided to end its undercover operation and arrest the members of
the Ring on the strength of evidence accumulated to date.
The Task Force obtained warrants to arrest James and to search
his home; and, on December 7, the police entered and searched
James' residence. Even though the search yielded no narcotics, the
Task Force did recover numerous weapons and abundant evidence of
drug trafficking activity including a portable scale, several radio
scanners capable of monitoring police frequencies, and a soda can
containing a secret compartment in which narcotics could be hidden.
James returned to his home while the search was in progress,
whereupon he was taken into custody and advised of his rights.
Washington and Provost were arrested later.
In January 1993, a grand jury returned a sixteen-count
indictment
(subsequently
superseded
by
an
eighteen-count
indictment) that charged James, Washington, and Provost as
codefendants in a conspiracy to distribute and possess crack.2
Additionally, James was charged with (a) four counts of possession
221 U.S.C. �� 841(a)(1), 846 (1988).
5

with intent to distribute crack,3 (b) one count of attempting to
possess with intent to distribute crack,4 (c) five counts of use of
or carrying a firearm during and in relation to a drug trafficking
crime,5 and (d) three counts of possession of a firearm by a
convicted felon.6 In addition to the conspiracy count, Washington
was charged with use of or carrying a firearm during and in
relation to a drug trafficking crime,7 and Provost was named in one
count of possession with intent to distribute crack.8
Provost began to cooperate with the Task Force almost
immediately after he was taken into custody. He agreed to plead
guilty to one count of possession with intent to distribute crack
and to cooperate with the government, in exchange for which the
government agreed to dismiss his conspiracy charge.
At trial, the government introduced an overwhelming amount of
evidence establishing James' and Washington's guilt. In addition
to substantial physical evidence, the government proffered numerous
3Id. �� 841(a)(1), 841(b)(1)(B)(iii).
4Id. �� 841(b)(1)(A), 846.
518 U.S.C. � 924(c)(1). The jury convicted James on all five
counts, but the government dismissed three of these counts before
the district court entered judgment. In that judgment, the
district court incorrectly listed James' offense as a violation of
� 922(c)(1), but in both the indictment and the description of the
offense in that judgment it is clear that James was convicted of
violating � 924(c)(1).
6Id. � 922(g). When the government dismissed the three
� 924(c) counts, it also dropped two of these � 922(g) counts.
7Id. � 924(c)(1).
821 U.S.C. �� 841(a)(1), 841(b)(1)(B)(iii).
6

witnesses, two of whom))Provost and Michael Jones))were former
members of the Ring. The CI and Agent King also testified
regarding the crack purchases they had made from the Ring at James'
residence.
Based on this and all other evidence, the jury found James and
Washington guilty on all counts. The district court sentenced
James to a total of life imprisonment plus twenty-five years
(followed by a period of supervised release), and Washington was
sentenced to a total of 295 months imprisonment (followed by a
period of supervised release). After sentencing, Washington moved
for a new trial charging that the government did not produce
certain evidence that would have tended to impeach the credibility
of two government witnesses))the CI and Cartwright. The court
considered arguments from each counsel as to the importance of this
newly discovered information, then denied Washington's motion for
a new trial. This appeal followed, with Washington proceeding in
forma pauperis.
II
ANALYSIS
On appeal, both James and Washington raise numerous points of
error. We address seriatim those having facial merit.9
9James also claims that the crack-powder cocaine sentencing
scheme violates equal protection and urges that the evidence is
insufficient to support his conviction on two counts of violating
21 U.S.C. � 924(c), but neither argument has merit under the well-
settled law of this circuit. See, e.g., United States v. Watson,
953 F.2d 895, 896 (5th Cir.) (sentencing scheme not violative of
equal protection), cert. denied, 112 S. Ct. 1989 (1992); United
States v. Beverly, 921 F.2d 559, 562-63 (5th Cir. 1991) (per
curiam) (on similar facts, evidence sufficient to support � 924(c)
7

A.
JAMES
1.
Right of Allocution
James contends that the district court failed to afford him
the right of allocution: He insists that the judge did not
ascertain directly from James whether he wished to exercise his
right personally to address the court. This omission, contends
James, mandates that we remand for resentencing so that he can
exercise this "absolute" right.
Federal Rule of Criminal Procedure 32(a)(1)(C) requires that
a sentencing court "address the defendant personally and determine
if the defendant wishes to make a statement and present any
information in mitigation of the sentence." The Supreme Court has
admonished that "trial judges should leave no room for doubt that
the defendant has been issued a personal invitation to speak prior
to sentencing."10 If the defendant is not afforded the opportunity
personally to speak in his own behalf before sentence is imposed,
conviction); United States v. Molinar-Apodaca, 889 F.2d 1417, 1419-
23 (5th Cir. 1989) (same).
Both James and Washington complain that the district court
used unreliable information in determining that they trafficked in
more than 1.5 kilograms of crack))the quantity of crack from which
each defendant's base offense level was calculated))but the record
utterly refutes their contention. See United States v. George, 911
F.2d 1028, 1030 (5th Cir. 1990) (per curiam) (stating that "the
court is not confined solely to matters included in [the
presentencing investigation report] and may base `its sentencing
decisions on matters not raised in [that report].'" (quotation
omitted)).
10Green v. United States, 365 U.S. 301, 305 (1961).
8

then "`resentencing is required.'"11
Prior to sentencing James, the district judge stated,
"[b]efore sentence is imposed, I'll hear from Mr. James and from
Mr. Jagmin" (James' counsel). "First, Mr. James, or whichever way
you want to do it. Mr. Jagmin." James' counsel responded by
pleading for the imposition of the minimum sentence required under
the United States Sentencing Commission Guidelines ("Guidelines").
After listening to Jagmin's entreaty, the district judge responded
that he would sentence James to the minimum sentence required by
law and then proceeded to do so, without renewing his previous
offer to James personally to address the court. After sentencing
James, the district judge concluded the proceeding by asking, "Is
there anything further, Mr. Jagmin?," to which Mr. Jagmin
responded, "No, your Honor." Neither Jagmin nor James objected to
the judge's failure to issue a second invitation to James to speak
to the court before being sentenced.
The judge's failure to renew his offer of allocution, urges
James, offends Rule 32(a)(1)(C). We disagree, finding most
persuasive the reasoning of the Seventh Circuit in United States v.
Franklin.12 In that appeal, the circuit court faced a factual
situation essentially indistinguishable from James' and held that
a district judge's failure to renew a previous offer of allocution
does not violate Rule 32. We, like the Seventh Circuit before us,
11United States v. Anderson, 987 F.2d 251, 261 (5th Cir.)
(quoting United States v. Dominguez-Hernandez, 934 F.2d 598, 599
(5th Cir. 1991)), cert. denied, 114 S. Ct. 157 (1993).
12902 F.2d 501 (7th Cir.), cert. denied, 498 U.S. 906 (1990).
9

do not believe that Rule 32 requires "[t]he district court . . . to
renew his invitation or inquire why [the defendant] did not accept
his invitation."13
In Franklin, the sentencing judge stated prior to sentencing:
"All right, Mr. Rose (defendant's attorney) and Mr. Anderson [the
defendant], do either or both of you have any statement that you
want to make in mitigation of sentence that the court ought to
consider in determining the appropriate sentence in this case?"14
Anderson's counsel then proceeded to make a presentation to the
court, arguing for a sentence in the lower range of the Guidelines.
The sentencing judge then asked Anderson's counsel to comment on
two issues that were troubling to the court; counsel responded; and
the court then spoke to the prosecution. The judge again addressed
defense counsel and asked, "[i]s there anything you want to state
further, Mr. Rose?" Mr. Rose added nothing, and the court
proceeded to sentence Anderson.
The Seventh Circuit held that, inasmuch as the district court
addressed the defendant by name and asked whether he had anything
to say in mitigation of his sentence, Rule 32(a)(1)(C) had been
satisfied. That court distinguished the circumstances before it
from those in which the judge's failure to address the defendant by
name necessitates a remand for resentencing.15 The Franklin court
13Id. at 507.
14Id. (alteration and emphasis in original).
15Id. (citing United States v. Van Drunen, 501 F.2d 1393, 1399
(7th Cir.), cert. denied, 419 U.S. 1091 (1974) and United States v.
Posner, 868 F.2d 720, 724 (5th Cir. 1989)).
10

expressly rejected the notion that when a defendant's counsel
responds first to the court's otherwise-adequate offer of
allocution, Rule 32(a)(1)(C) requires that the district judge renew
his personal invitation to the defendant after defendant's counsel
has spoken to the court. In words equally applicable here, the
Seventh Circuit stated:
Wisely, neither Rule 32(a)(1)(C) nor any case law requires
such a rigid procedural formula. Neither [the defendant] nor
his counsel indicated that [the defendant] wished to accept
the court's invitation to speak on his own behalf. Since the
district judge was not required to renew his invitation or
inquire why [the defendant] did not accept his invitation,
[the defendant] was not denied his right of allocution.16
As in Franklin, the record in the instant case makes
unquestionably clear that before sentencing the trial judge invited
James, by name, to address the court. We are satisfied that by so
doing, James could not have helped but understand that he had been
issued a personal invitation by the trial judge to speak to the
court before being sentenced; James merely failed, or by his
silence declined, to avail himself of the opportunity to do so.
2.
Prosecutorial Misconduct: Closing Argument
James complains that his trial was fundamentally unfair
because the prosecution made several statements during closing
argument to the jury that, according to James, vouched for the
credibility of government witnesses and challenged the veracity of
defense witnesses. As James did not object to these statements
contemporaneously or otherwise object prior to appeal, "we must
consider [first] whether the statements were improper and, if so,
16Id.
11

[second] whether they amounted to plain error under Fed. R. Crim.
P. 52(a)."17
a.
Propriety of the Statements
The law is clear that in closing argument a prosecutor may not
personally vouch for the credibility of a government witness, as
doing so may imply that the prosecutor has additional personal
knowledge about the witness and facts that confirm such witness'
testimony, or may add credence to such witness' testimony.18 James
complains that the prosecution violated this clear prohibition
three times: (1) when in summarizing the responsibility of
cooperating witnesses the prosecutor stated, "[t]heir obligation is
to cooperate and tell the truth"; (2) by commenting that, "[w]e're
not exaggerating, we're telling you exactly what happened"
(emphasis added); and (3) after questioning rhetorically whether a
government witness, Jones, was "making up" stories, the prosecutor
answered his own question by responding, "I don't think so"
(emphasis added). Although at first blush))and taken out of
context))several of the prosecutor's statements might appear to be
impermissible vouching, when viewed in the context in which they
were made, we see clearly that no such personal assurances were
17United States v. Thomas, 12 F.3d 1350, 1367 (5th Cir.), cert.
denied, 114 S. Ct. 1861 and 114 S. Ct. 2119 (1994); United States
v. Carter, 953 F.2d 1449, 1460 (5th Cir.) (when defendant does not
object to statements at trial, "we will reverse only if the
comments rise to the level of plain error"), cert. denied, 112 S.
Ct. 2980 (1992); United States v. Simpson, 901 F.2d 1223, 1227 (5th
Cir. 1990) ("If the defendant has not objected to the portion of
the closing argument he challenges on appeal, we review only for
plain error."), cert. denied, 114 S. Ct. 486 (1993).
18See Carter, 953 F.2d at 1460.
12

offered by government counsel.
"We must review the allegedly improper argument `in light of
the argument to which it responded.'"19 During trial, defense
counsel contended that the plea agreements between government
witnesses and the prosecution invited the witnesses to perjure
themselves so as to procure lesser sentences. In such
circumstances, "the government `may even present what amounts to
bolstering argument if it is specifically done in rebuttal to
assertions made by defense counsel in order to remove any stigma
cast upon [the prosecutor] or his witnesses.'"20 Even if these
statements were tantamount to bolstering, such bolstering would not
have been improper in this case.
But we do not believe that the prosecution's reference to the
obligations of cooperating witnesses did amount to bolstering.
Taken in context, the prosecution merely argued that the plea
agreements, which had been entered into evidence, provided little
motivation for cooperating witnesses to testify falsely. A
prosecutor is not forbidden to argue that "`the fair inference from
the facts presented is that a witness has no reason to lie.'"21
19Thomas, 12 F.3d at 1367.
20Id. (quoting United States v. Dorr, 636 F.2d 117, 120 (5th
Cir. 1981)).
21See United States v. Saenz, 747 F.2d 930, 940 (5th Cir. 1984)
(quoting United States v. Bright, 630 F.2d 804, 824 (5th Cir.
1980)), cert. denied, 473 U.S. 906 (1985); see also United States
v. Robles-Pantoja, 887 F.2d 1250, 1256 (5th Cir. 1989) (stating
that prosecutor did not bolster his witnesses, rather he merely
urged jury to assess motives and bias of prosecution witnesses as
they would assess those of any witness).
13

Moreover, a prosecutor is not prohibited from "recit[ing] to
the jury those inferences and conclusions he wishes [the jury] to
draw from the evidence so long as those inferences are grounded
upon the evidence."22 In each of the other two instances of alleged
bolstering, that is clearly all that the prosecution was attempting
to do. When the prosecution commented, "we're not exaggerating,"
and "I don't think so," it was inviting the jury to compare the
credibility of the government's witnesses with that of those who
testified for the defense, even though we concede that the
prosecutor's choice of the first person pronouns may have been a
bit unfortunate. The purpose of closing argument is to assist the
jury in analyzing and evaluating the evidence,23 and we are
convinced that here the prosecution did nothing more.
We also find meritless James' argument the prosecution
improperly offered its personal view of the credibility of defense
witnesses in two other instances when the prosecution ventured the
opinions that one defense witness was "lying," and that another
defense witness "was not being truthful." Taken in context, these
two statements are merely further examples of the prosecution's
reciting evidence in the record))this time, conflicting
evidence))and then attempting to persuade the jury to arrive at a
certain conclusion based on that evidence. There is nothing
22United States v. Loney, 959 F.2d 1332, 1343 (5th Cir. 1992);
United States v. Webb, 950 F.2d 226, 230 (5th Cir. 1991) (per
curiam), cert. denied, 112 S. Ct. 2316 (1992).
23See United States v. Phillips, 664 F.2d 971, 1030 (5th Cir.
Unit B Dec. 28, 1981), cert. denied, 457 U.S. 1136 and 459 U.S.
906 (1982).
14

impermissible about a prosecutor's pointing out inconsistent facts
or testimony in the record and arguing that the jury should adopt
a particular conclusion based on that evidence.24 Given the
evidence before the jury, therefore, we find nothing inappropriate
about the prosecution's comments in closing argument.
b.
Plain Error
Even assuming arguendo that we were to find any or all of
these statements improper, such a finding would not here require
reversal. Reversal for plain error is required only when the error
is prejudicial, i.e., "it must have affected the outcome of the
District Court proceedings."25 In determining the overall degree
of prejudice in a prosecutor's closing argument, we consider the
district court's cautionary instructions to the jury26 and the
24See Loney, 959 F.2d at 1343 (stating that it was not
impermissible to call defendant a "liar" based on evidence that
indicated that defendant's statements and actions were not
consistent).
25United States v. Olano, 113 S. Ct. 1770, 1777-78 (1993); see
FED. R. CRIM. P. 52(b) ("Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court."); see, e.g., Bradford v. Whitley, 953
F.2d 1008, 1013 (5th Cir.) (referring to defendant as "liar" no
violation of substantive rights in context of entire closing
argument), cert. denied, 113 S. Ct. 91 (1992); United States v.
Nanez, 694 F.2d 405, 410 (5th Cir. 1982) (holding that for
bolstering to constitute plain error, the prosecutor must have
"intertwined his own personal and official credibility with that of
the witnesses"), cert. denied, 461 U.S. 909 (1983).
26See, e.g., United States v. Andrews, 22 F.3d 1328, 1343 n.16
(5th Cir.) (stating that we have held that "an improper statement
by the prosecutor was harmless, in light of the district court's
instruction that `the attorneys' statements are not evidence to be
considered by the jury.'" (quoting United States v. Morris, 568
F.2d 396, 402 (5th Cir. 1978)), cert. denied, 115 S. Ct. 346
(1994).
15

strength of the evidence against each defendant.27 In light of the
district court's proper jury instruction and the quantum of
evidence establishing guilt, any putatively improper closing
argument by the prosecutor here certainly would not rise to the
level of plain error.
3.
Sentencing Entrapment
We also reject James' contention that his right to due process
was violated by the Task Force when it delayed arrest and ordered
more crack, for the purported purpose of exposing James to a longer
term of incarceration under the Guidelines. This "trendy" argument
appears to be in vogue currently; it has recently been proffered by
numerous defendants around the country, being referred to variously
by the courts as "sentencing entrapment" or "sentencing factor
manipulation."28 Until now, however, we have not had occasion to
27United States v. Carter, 953 F.2d 1449, 1457 (5th Cir.)
(considering magnitude of the prejudicial effect of the statements,
efficacy of cautionary instructions, and strength of evidence of
guilt), cert. denied, 112 S. Ct. 2980 (1992); United States v.
Simpson, 901 F.2d 1223, 1227 (5th Cir. 1990) (same), cert. denied,
114 S. Ct. 486 (1993); see, e.g., United States v. Robles-Pantoja,
887 F.2d 1250, 1256 (5th Cir. 1989).
28We are aware of only one case, United States v. Staufer, 38
F.3d 1103, 1107-08 (9th Cir. 1994), in which a federal court of
appeals has reversed a sentence based on a finding that the
defendant was subjected to sentencing entrapment. The Eighth
Circuit appears to have adopted the theory, United States v. Barth,
990 F.2d 422, 425 (8th Cir. 1993), and the Eleventh Circuit has
expressly rejected it, United States v. Williams, 954 F.2d 668,
672-73 (11th Cir. 1993). Many of the remaining circuit courts of
appeals, including ours, have not yet been presented with facts
requiring that they squarely address this issue. See, e.g., United
States v. Brewster, 1 F.3d 51, 55 n.5 (1st Cir. 1993); United
States v. Rosa, 17 F.3d 1531, 1551 (2d Cir.), cert. denied, 115 S.
Ct. 211 (1994); United States v. Raven, 39 F.3d 428, 438 (3d Cir.
1994); United States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994);
United States v. Murphy, 16 F.3d 1222 (6th Cir. 1994) (table
16

address the viability of this proposition, and we conclude that we
need not do so today given the facts before us.
Two witnesses testified that James actually supplied crack in
an aggregate quantity far greater than the amount that he now
alleges the government continued to purchase over time for the
purpose of increasing the quantity of drugs for which he could be
sentenced. Such testimony alone refutes any claim that James was
predisposed to deal only in a cumulative quantity smaller than the
total amount purchased by the government.29
4.
Sentencing Guidelines
James also advances several points of error regarding his
sentence under the Guidelines. We review de novo a district
court's application of the Guidelines, but will reverse factual
findings made during sentencing only if they are clearly
erroneous.30
a.
� 2D1.1 Enhancement
opinion) (unpublished) (text available 1994 WL 18008, at *4);
United States v. Cotts, 14 F.3d 300, 306 n.2 (7th Cir. 1994);
Baughman v. United States, 992 F.2d 1222 (10th Cir. 1993) (table
opinion) (unpublished) (text available 1993 WL 141198, at *1).
29Barth, 990 F.2d at 424 (defining "sentencing entrapment" as
"`"outrageous official conduct [that] overcomes the will of an
individual predisposed only to dealing in small quantities for the
purpose of increasing the amount of drugs . . . and the resulting
sentence of the entrapped defendant."'" (quotations omitted)); see
Staufer, 38 F.3d at 1106 ("Sentencing enhancement or `sentencing
factor manipulation' occurs when a `defendant, although predisposed
to commit a minor or lesser offense, is entrapped in committing a
greater offense subject to greater punishment.'" (quotation
omitted)).
30See United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.
1992), cert. denied, 113 S. Ct. 2365 (1993).
17

James first contends that the district court erroneously
enhanced his sentence two levels under � 2D1.1 for his possession
of a firearm during a drug trafficking offense. He complains that
the district court "double counted" by first convicting him of two
counts under � 924(c) for the possession of two firearms and then
enhancing his sentence under � 2D1.1 for possessing a firearm in a
drug trafficking offense. True, a sentencing court may not enhance
a drug trafficking sentence based on a defendant's possession of a
firearm if the defendant also is convicted under � 924(c) for the
possession of that same firearm.31 But no such double counting
occurred here.
James was convicted under � 924(c) based on his use of or
carrying two specific guns: a Sundance Model A-25, .25 caliber
pistol, and a Companhia Brasileira De Cartuchos Model SB, 12 gauge
shotgun. But his sentence was enhanced under � 2D1.1 because the
court found that James armed Washington with a third gun belonging
to JamesSQa blue-steel, .25 caliber, semi-automatic handgunSQso that
Washington could protect himself and his drugs while conducting a
particular drug transaction. James was neither indicted nor
31See United States v. Rodgers, 981 F.2d 497, 500 (11th Cir.
1993) (per curiam) (improper to convict under � 924(c) and to
enhance sentence based on possession of the same weapon); United
States v. Harris, 959 F.2d 246, 266 (D.C. Cir.) (per curiam)
(same), cert. denied, 113 S. Ct. 362 and 113 S. Ct. 364 (1992); cf.
United States v. Cabral-Castillo, 35 F.3d 182, 188 (5th Cir. 1994)
(discussing double counting), petition for cert. filed, (U.S. Jan.
3, 1995) (No. 94-7524); see also U.S.S.G. � 2K2.4 commentary
("Where a sentence under this section is imposed in conjunction
with a sentence for an underlying offense, any specific offense
characteristic for the possession, use, or discharge of an
explosive or firearm . . . is not to be applied in respect to the
guideline for the underlying offense.").
18

convicted under � 924(c) for the use of or carrying that pistol.
The district court therefore did not make a double-counting error
in enhancing James' sentence under � 2D1.1 based on its finding
that James' codefendant, Washington, possessed that pistol during
a drug trafficking offense.32 As the Eleventh Circuit recently
explained, under such circumstances an enhancement is entirely
proper because two armed men pose a much greater threat to public
safety than does one.33
b.
James' Role in the Offense
James also contests the district court's increase of his base
offense level by four on its finding that he was the "organizer and
leader of a criminal activity that had five or more participants."34
James complains in particular that there is insufficient evidence
to support a finding that he supervised five participants in the
Ring, which James claims is a prerequisite of this enhancement.
But we have held that proof that a defendant supervised only one
other culpable participant is sufficient to make that defendant
eligible for this enhancement,35 and here the evidence proves that
32See United States v. Kimmons, 965 F.2d 1001, 1011 (11th Cir.
1992) (sentence enhancement not improper when � 2B3.1 enhancement
and � 924(c) conviction did not involve the same firearm or the
same possession), vacated and remanded on other grounds, 113 S. Ct.
2326 (1993), reinstated on remand, 1 F.3d 1144 (11th Cir. 1993).
33Id.
34U.S.S.G. � 3B1.1(a) (enhance base offense level four levels
"[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive.").
35United States v. Okoli, 20 F.3d 615, 1616 (5th Cir. 1994).
19

James supervised three at a minimum: Washington, Provost, and
Michael Jones.
B.
WASHINGTON
1.
Brady Violation
Washington claims that he was denied a fair trial because the
government failed to disclose evidence tending to impeach the
credibility of two government witnesses))the CI and Cartwright. In
particular, Washington complains that the prosecution failed to
disclose evidence that Cartwright))and possibly an Assistant U.S.
Attorney ("AUSA") as well))had asked a Texas parole board to stop
its revocation proceedings against the CI. The government's
failure to disclose that information, concludes Washington,
requires that his conviction be overturned. We are not convinced.
In Brady v. Maryland,36 the Supreme Court stated that "the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution." "Impeachment evidence . . . as well
as exculpatory evidence, falls within the Brady rule."37
For cases involving prosecutorial failure to disclose evidence
favorable to the accused (such as the impeachment evidence at issue
here), "[t]he evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
36373 U.S. 83, 87 (1963).
37United States v. Bagley, 473 U.S. 667, 676 (1985) (citing
Giglio v. United States, 405 U.S. 150, 154 (1972)).
20

the result of the proceeding would have been different. A
`reasonable probability' is a probability sufficient to undermine
confidence in the outcome."38
When we consider the record as a whole, our confidence in the
outcome of this case is not shaken by this newly discovered
information. Indeed, considerable other evidence was presented to
the jury to show that the CI may have been biased or may have had
an interest in testifying for the government. At trial it was
revealed, for example, that the CI was paid for expenses incurred
during her work as an informant, and that another AUSA wrote to a
Parish District Attorney's office in Louisiana to request that she
receive favorable treatment. The CI also testified as to her
belief that the reason the parole board did not revoke her parole
was her decision to participate in the Task Force's investigation
and to testify in this case.39 Information that Cartwright (or even
an AUSA) had contacted a Parole Board to try to stop revocation
proceedings would merely have been cumulative of the CI's own
testimony in this regard.
38Id. at 682 (plurality) and id. at 685 (White, J.,
concurring); see id. at 677 ("A finding of materiality of the
evidence is required under Brady. . . . A new trial is required if
`the false testimony could . . . in any reasonable likelihood have
affected the judgment of the jury . . . ." (quotations omitted)).
39The CI testified as follows:
Q:
You think your testimony in this case and your work with
the DEA has something to do with your not having your
parole revoked?
A:
Sure, I believe that.
Q:
It does, doesn't it?
A:
Yes.
21

Neither are we convinced that either James or Washington would
have been acquitted had this undisclosed information been made
available to the defense to impeach Cartwright. The record makes
clear that Cartwright was a relatively insignificant witness,40
whose testimony was limited primarily to the chain of custody of
the narcotics and events regarding the apprehension and arrest of
James; and neither James nor Washington contest Cartwright's
version of the facts surrounding either of those events.
We also reject Washington's contention that his conviction
should be overturned as the product of the knowing use of perjured
testimony.41 We first note that there is no evidence that the
prosecution knowingly used perjured testimony; as the district
court found, Washington merely "out discovered" the government.
Moreover, even though after trial two parole board employees
contradicted Cartwright's testimony that he did not try to
influence the parole board's proceedings, that alone does not prove
that Cartwright's testimony was perjurious. Inconsistency of
testimony among witnesses can as easily be explained as the result
of faulty recollections or differences of opinions. And, even if
there was some lying going on, who is to say that Cartwright was
the liar?
40We note that Provost, the CI, Agent King and, to a lesser
extent, Michael Jones, provided the most damaging testimony against
James and Washington.
41United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir.
1978) (stating that "the knowing use by the prosecution of false
evidence or perjured testimony which is material to the issues in
a criminal trial is a denial of due process"); see United States v.
Bermea, 30 F.3d 1539, 1565 (5th Cir. 1994) (quoting Anderson).
22

Even more important, however, is the fact that Cartwright's
allegedly perjurious statements have nothing to do with
Washington's guilt or innocence; rather, they concern a completely
collateral matter))whether Cartwright attempted to intercede in the
parole board's deliberations on behalf of the CI. Reversal is
required only if the testimony is material, i.e., if its use
"creates a reasonable likelihood that the jury's verdict might have
been different."42 Given the extremely tangential nature of this
undisclosed information, the limited scope of Cartwright's
testimony at trial, and the overwhelming quantity and quality of
the other evidence in the record supporting the jury's verdict, we
conclude that Cartwright's testimony))even if perjurious))"does not
cast `serious doubt' upon the correctness of the jury verdict or
the fairness of the trial."43

2.
Evidentiary Rulings: Opinion Testimony
Washington also contends that the district court reversibly
erred in admitting five "expert" opinions by two government agents
and the CI regarding the operations and methods of drug
trafficking.44 The rule is well-established that an experienced
42Bermea, 30 F.3d at 1565.
43Id. (quoting United States v. Willis, 6 F.3d 257, 263 (5th
Cir. 1994)).
44Washington's argument could also be interpreted to challenge
the testimony as impermissible profile evidence. United States v.
Williams, 957 F.2d 1238, 1240-41 (5th Cir. 1992); see Speer, 30
F.3d at 610 n.3. The record makes clear, however, that those
opinions were not offered for that purpose. Compare Williams, 957
F.2d at 1241-42 (finding government introduced and argued evidence
in a manner to prove substantive guilt based on defendant's
similarity to profile) with Speer, 30 F.3d at 610 & n.3 (concluding
23

narcotics agent may testify about the significance of certain
conduct or methods of operation unique to the drug distribution
business,45 as such testimony often is helpful in assisting the
trier of fact understand the evidence.46 Here, the trial court did
not abuse its discretion in admitting the subject opinions into
that witness merely analyzed evidence in light of his special
knowledge as an expert in narcotics trafficking).
45United States v. Kusek, 844 F.2d 942, 949 (2d Cir.) (stating
that "`[t]he operations of narcotics dealers are a proper subject
for expert testimony under Rule 702'" (quotation omitted)), cert.
denied, 488 U.S. 860 (1988); accord United States v. DeSoto, 885
F.2d 354, 360 (7th Cir. 1989); United States v. Espinosa, 827 F.2d
604, 612 (9th Cir. 1987), cert. denied, 485 U.S. 968 (1988); see,
e.g., Speer, 30 F.3d at 609 (DEA agent's testimony that possession
of scale and 30 grams of cocaine is consistent with drug
trafficking); United States v. Boney, 977 F.2d 624, 631 (D.C. Cir.
1992) (officer's testimony matching particular defendants and their
actions with paradigm roles in a cocaine sale); United States v.
Armendariz-Mata, 949 F.2d 151, 155 (5th Cir. 1991) (DEA agent's
testimony as to the meaning of certain "code words" and
significance of some of defendant's actions), cert. denied, 112 S.
Ct. 2288 (1992); United States v. Dunn, 846 F.2d 761, 762 (D.C.
Cir. 1988) (no abuse of discretion to allow expert to testify that
nature of activities in a townhouse suggested "a retail operation
used for the everyday distribution, distributing of primarily crack
and heroin"); Espinosa, 827 F.2d at 611-13 (no abuse of discretion
to permit officer to state that in his opinion trade of packages
was an exchange of narcotics for money); United States v. Young,
745 F.2d 733, 760-61 (2d Cir. 1984) (testimony regarding
paraphernalia one would expect to find in a heroin "mill"), cert.
denied, 470 U.S. 1084 (1985); United States v. Carson, 702 F.2d
351, 369 (2d Cir. 1983) (no abuse of discretion to permit agents to
testify that defendant's furtive activity appeared to them to be
sale of narcotics), cert. denied, 462 U.S. 1108 (1983).
46FED. R. EVID. 702 (stating that witnesses with specialized
knowledge may express an opinion where such knowledge "will assist
the trier of fact to understand the evidence or to determine a fact
in issue"); see FED. R. EVID. 701 (providing that lay witnesses may
express opinions or inferences that are "(a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the determination of a
fact in issue").
24

evidence.47
But even if admitting any or all of the questioned opinion
testimony had been error, reversal would not be required. To
repeat, the government presented overwhelming evidence establishing
Washington's guilt; thus any error that the court may have made in
admitting those snippets of opinion was harmless.48
III
CONCLUSION
Finding no reversible error, we affirm in all respects the
convictions and sentences of James and Washington.
47Speer, 30 F.3d at 609 (quoting Williams, 957 F.2d at 1240-
41).
48See Schneble v. Florida, 405 U.S. 427, 432 (1972); United
States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991).
25