UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                 No. 95-5067
ARTHUR MCKINLEY WATSON, a/k/a
Red,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5068
JAMES DONALD WATSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5082

WINFRED WESLEY WATSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5097

BILL HALL,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5293

BRIAN ROC WATSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-94-139)

Argued: December 8, 1995

Decided: September 17, 1996

Before WILKINSON, Chief Judge, and WIDENER and
HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Widener wrote the opinion,
in which Chief Judge Wilkinson and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Lee W. Kilduff, MORCHOWER, LUXTON & WHA-
LEY, Richmond, Virginia; Robert Lynn McClellan, IVEY, IVEY,
MCCLELLAN & GATTON, Greensboro, North Carolina; W. David
Lloyd, LLOYD & LLOYD, Greensboro, North Carolina, for Appel-
lants. David Bernard Smith, Assistant United States Attorney/Senior
Litigation Counsel, Greensboro, North Carolina, for Appellee. ON
BRIEF: Daniel S. Johnson, LAW OFFICE OF DANIEL S. JOHN-
SON, Winston-Salem, North Carolina, for Appellant Hall; Donald K.
Tisdale, TISDALE, HOLTON & MENEFEE, P.A., Winston-Salem,

                   2
North Carolina, for Appellant Brian Watson. Walter C. Holton, Jr.,
United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

In these five consolidated appeals, defendants-appellants Arthur
McKinley "Red" Watson, James Donald Watson, Winfred Wesley
Watson, Brian "Roc" Watson, and Bill Hall challenge their convic-
tions and sentences for drug related offenses. We affirm the district
court's conviction and sentence as to each appellant.

In June, 1994, a federal grand jury indicted the Watson defendants
and Bill Hall with conspiracy to possess with intent to distribute, and
to distribute diazepam (Valium) and over 100 kilograms of marijuana.
The Watsons are related. Bill Hall is unrelated.

A partial recitation of the testimony entitled to belief by the jury
follows.

At trial, the government offered testimony from Dennis Gale, an
admitted marijuana dealer testifying under a plea agreement. Gale met
Brian in 1990 or 1991 and began to front Brian 10 to 15 pounds of
marijuana for distribution every 10 to 14 days. Through Brian, Wes-
ley learned Gale could distribute 50-200 pound quantities of mari-
juana and went to Gale's residence with Brian to meet him. Gale
testified that Wesley "was getting in marijuana also," and the two dis-
cussed how marijuana was packaged to prevent detection, the kind of
marijuana, and the locations from which their shipments originated.
Gale's marijuana came from the southwestern United States and was
packed with coffee grounds and pepper and wrapped with newspaper
from places such as Nogales, Arizona and Brownsville, Texas. Wes-

                     3
ley agreed that his marijuana came from the same areas and, Gale tes-
tified, "[t]hey mentioned they had been to those type of areas
themselves."

Wesley also discussed the seizure, from him, of over $10,000 in
cash during a trip from South Carolina to Atlanta in May, 1992. Gale
testified Wesley told him he was en route to Atlanta to buy marijuana
when the money was seized, and that "they were trying to get it back,
but it was going to cost money," because the origin of amounts over
$10,000 must be proven. Wesley offered to sell Gale 50 to 100 pound
quantities of marijuana for $1400 per pound and diazepam, a form of
Valium. Gale told Wesley he might be interested in the marijuana at
$1000 per pound but not in the Valium.

Gale testified that in 1992, Brian introduced him to Andy Hol-
comb, a co-worker, who joined Brian in distributing marijuana. On
one occasion, Brian and Holcomb left Gale's house with 12 pounds
of marijuana and were arrested when they tried to avoid a roadblock.
The pair had been drinking and had rifles and scales in the car,
besides the marijuana. Gale became scared because Holcomb "knew
a lot, really, about everything that was going on." Along with Wesley
and Brian, Gale met Holcomb at a donut shop in Winston-Salem "to
kind of instruct him on how to handle himself." The three didn't want
to "leave him [Holcomb] out in the cold on the situation, whose mari-
juana it was and where it was coming from." Wesley recommended
an attorney to represent Holcomb, and agreed, along with Gale and
Brian, to help pay his attorney's fees. Gale personally gave Holcomb
about $2,500 for his attorney.

Gale recalled that Brian became hospitalized for a month and fell
$3-4,000 dollars behind paying for marijuana. To settle the debt,
Brian told Gale that Wesley had a quantity of marijuana coming in
and offered him a 33-38 pound deal at $1100 a pound with a $100
per pound discount to apply to the debt. Gale agreed, and a week later
Wesley showed up at Gale's house with the dope. Wesley accepted
$9,000 down and offered Gale another deal at $1,000 per pound for
50-100 pounds, a cash transaction. When Wesley collected the bal-
ance Gale owed for the first deal, he explained that the 50-100 pounds
for the next deal would come from a 300-400 pound shipment he was
expecting. Gale agreed to buy, but when a month went by with no

                    4
word from Wesley, Gale determined from Brian that the shipment had
been smaller than expected.

Gale testified that he and Wesley entered into "some type of a part-
nership," in which Gale agreed to sell and pay for "any amount of
marijuana that was fronted to me." Until Gale's arrest in February
1994, he saw Brian quite often "if he [Brian] needed marijuana or
wanted to square up what he owed," and said that Brian "would speak
about it, you know, they got in a little bit of marijuana . . . he would
tell me that his dad got in probably 100 to 125 pounds, 150 pounds."
Gale also saw Valium in Brian's possession and discussed buying
Valium from him.

Through Wesley, Gale met Don Watson, also in 1992. In the fall
of 1993, Don approached Gale in a bar they both frequented called
the Silver Fox. Don told Gale that Wesley "had some marijuana, but
it wasn't enough, that he needed more, that he had run out," and Don
"asked if he could get some from me [Gale] periodically, to make up
for the difference." From then until Gale's arrest, Gale supplied Don
with 10-15 pounds of marijuana every one to two weeks. Gale made
deliveries at several places including a car shop Don operated. Don
paid Gale "most of the time at the Silver Fox on Sunday nights."

Besides dealing drugs, Don and Gale discussed Brian and Wesley's
activities. Gale testified that Don might say "he didn't need any mari-
juana because Wesley had brought in some marijuana, and he had
enough to make it through." Gale testified Don"would say, well, you
know, Wesley got in a certain amount, like -- roughly, this was
roughly, it was 125 pounds, and he didn't get but 25 pounds and . . .
he would need, you know, possibly 10 pounds this week instead of
20, or seven pounds instead of 15." On May 6, 1993, Don was
arrested with defendant Bill Hall in possession of over 116,000
Valium pills in Hall's trailer. Hall had just returned from driving
Don's brother Red to Laredo, Texas the night before the arrest, and
the evidence showed that Red and Hall smuggled the Valium into
North Carolina with a shipment of Mexican pottery. Gale testified
that Don discussed the circumstances of the arrest with him. Portions
of Gale's testimony were later corroborated by his wife, Karrie Gale,
and employee, James Paul Booth.

                    5
The government also called on a witness, Wendell Neal, an
employee at Don Watson's auto shop from the latter part of 1991
through April or May of 1993. Neal had been arrested on drug
charges in the spring of 1993 and had agreed to provide information
to North Carolina law enforcement authorities on his observation of
activities at Don Watson's car shop. Neal knew Wesley, but met Red
Watson, Brian Watson, and Bill Hall while working for Don. Neal
testified that after about six months at Don's, he became involved in
distributing marijuana and Valium. His first transaction involved a
pound of marijuana fronted to him by Wesley. Neal paid Wesley for
the dope at Don's home after it was sold. Later, Neal bought mari-
juana from both Wesley and Don.

In the Spring of 1992, Wesley and one Keith McGhee entrusted
Neal with three boxes, each containing over 10 pounds of marijuana.
Neal kept the boxes at his house for a night, and helped Wesley
repackage the drug in Neal's father's garage the next day. After the
repackaging, Wesley left Neal with nine pounds of marijuana to hold
for Don. Neal found a buyer for the drug, however, but could not con-
tact Wesley for permission to sell. Neal sought and received permis-
sion to sell from Don, whom Neal said told him "go ahead and sell
it; that's what we were there for, to make money." Neal was cheated,
however, the drugs were taken and he never got paid. Neal told Wes-
ley what happened and asked him to keep it between the two of them
but "within a matter of days Don knew it, and several other people."
After being cheated Neal stopped buying marijuana from Wesley, but
during the fall of 1992 through the Spring of 1993, he purchased two
pounds a month from Don.

Neal also testified that he bought Valium from Don and was pres-
ent when Don left Valium in his shop that was picked up by Bill Hall.
From time to time, Don showed Neal a note pad containing records
of Don's Valium dealings.

Neal was also privy to the handling of money. He observed Wesley
and Don Watson and Keith McGhee with money bagged for a trip "to
south of Georgia." This was the money that Gale testified Wesley told
him was to be used to buy marijuana and which was confiscated from
Wesley during a traffic stop in South Carolina. To prove a legitimate
origin for the cash, Wesley asked Neal to sign an affidavit apparently

                    6
falsely swearing that Neal had loaned him some of the money. On
another occasion, Wesley was worried about having a paint can
"packed with money" in his possession. Wesley gave Neal the can to
hold at Don's instruction, and recovered it from Neal several days
later in Keith McGhee's driveway. In April of 1993, shortly before
Don and Bill Hall were arrested with Valium, Neal was working late
at Don's shop when Don came in with a bag full of wet money
packed in orange plastic bags and asked Neal to help him count it.
Neal counted about $15,000 - half of the total- and helped Don roll
it up into clean bags and tape it inside the spare tire of a red Chevrolet
S-10 truck. He then informed the state authorities about the money.
A few nights later, when Bill Hall returned from Texas, Neal took a
message from him to tell Don that Hall was home. After that, Neal
learned from TV news that Don and Hall had been arrested.

One Deborah Davis testified that in the fall of 1990 she and Tracy
Powell, a friend, roomed with a drug dealer named Hobart Crotts in
Lexington, N.C. Miss Davis testified that Crotts had a business selling
pottery but also sold marijuana and Valium obtained from Wesley and
Red Watson. Miss Davis testified that on one occasion she and Miss
Powell accompanied Crotts to what she believed was Wesley Wat-
son's house. Crotts parked his car and went into the garage, where
Miss Davis saw Wesley and Red. Crotts spoke to Wesley, then Wes-
ley and Crotts carried a large bag containing 5 to 8 pounds of mari-
juana out to the car in which Miss Davis and Miss Powell were
waiting, and Crotts handed Miss Powell a quantity of Valium pills.
Crotts then went back into the garage where Miss Davis watched him
speak with both Wesley and Red until Red pulled the garage door
down. Miss Davis later saw Crotts weigh and distribute the marijuana
and pills to other dealers.

Andy Holcomb, Brian Watson's co-worker, testified for the gov-
ernment as well. Holcomb corroborated Dennis Gale's testimony that
Gale, Wesley, and Brian met him in a donut shop following his arrest
for conspiracy with Brian on marijuana charges, to discuss his testi-
mony and legal representation. Holcomb confirmed that Wesley sug-
gested an attorney to represent him and offered to pay his legal fees.
Holcomb testified that he engaged in ten drug transactions through
Brian Watson. He detailed one transaction in June of 1992 in which
he received two pounds of marijuana and 1,000 Valium pills. Wesley

                     7
delivered the drugs, meeting Holcomb and Brian in the parking lot of
a fast food restaurant. The Watsons fronted Holcomb the drugs, and
he paid Brian for them when they were sold.

The government presented testimony from police witnesses that
described the execution of search warrants on Don Watson's business
and Don and Red's residences in March, 1992, showing the defen-
dants connection to Laredo, Texas. They also described the May 6,
1992 traffic stop of Wesley Watson and confiscation of $56,781 in
cash, and the execution of a search warrant on the residence of defen-
dant Bill Hall on May 6, 1993 that resulted in Hall and Don Watson's
arrest and the seizure of over 116,000 Valium pills. The search of
Don's shop turned up telephone bills reflecting calls to Laredo, Texas.
At both Don and Red's residences, police found a variety of docu-
ments relating to Laredo, including, at Red's, a Mexican prescription
for Valium.

Police testimony tied a white Isuzu truck to Don Watson's business
and Red Watson's residence throughout 1992. The same white truck
was found outside Bill Hall's residence on the day he and Don were
arrested with the Valium. Hall testified that Don Watson asked him
to drive Red to Laredo, Texas and back for $500 plus expenses. Hall
agreed because he was out of work, although he did not have a valid
driver's license and was using a phony one made up in the name of
a deceased cousin, Robert Hall. In Texas, Red complained he was ill
and would fly home, so Hall drove the Isuzu back to North Carolina
alone, arriving late in the evening of May 5, 1993. When police exe-
cuted the search warrant on Hall's trailer on May 6, 1993, Hall was
just outside and Don was inside the trailer. Also inside, spread out in
the kitchen area, were Valium pills, plastic bags, a scale, and razor
blades. Police also found a theme book that was blank except for the
last two pages which contained cryptic notations of names and num-
bers including that Red has owed and paid various sums, and Wesley
was in the book in connection with certain numbers.

One Shull, a pottery dealer in Laredo, testified for the defendants.
His testimony included, however, that Red bought drugs legally in
Mexico because drugs that would require a prescription in the United
States could be obtained without one in Mexico and drugs were
cheaper there. Shull verified that the shipment Red purchased from

                    8
Mexico was wrapped and sealed south of the border and that he,
Shull, did not repackage it after it came across.

The government also presented testimony from Guy Stivender, a
federal inmate at Forsyth County jail. At the beginning of Stivender's
testimony, the court limited the jury's consideration of his statements
to defendant Don Watson, only. Stivender testified that while in jail,
Don said that he was involved in bringing in marijuana and Valium
from Mexico through Texas and offered to front Stivender drugs to
sell when Stivender was released.

A.

At the close of the government's case, and again at the close of all
the evidence, the defendants moved to dismiss or acquit, arguing
either that insufficient evidence showed their knowing assent to the
conspiracy, or that the government had failed to prove a single con-
spiracy. The court denied these motions. On appeal, the defendants
claim the evidence does not support the verdict.

Red Watson asserts separately that the district court erred in deny-
ing his Fed. R. Crim. P. Rule 29(c) motion. Red argues that the evi-
dence adduced by the government shows only that he was associated
with the other defendants and can't be stretched to demonstrate
knowledge of the conspiracy or agreement to participate in it without
engaging in a chain of inferences that is impermissibly long.

With respect to defining a conspiracy, the jury was instructed as
follows:

          What the evidence in the case must show, beyond a rea-
          sonable doubt, in order to establish proof that a conspiracy
          existed, is that the members in some way or manner or
          through some contrivance, positively or tacitly came to a
          mutual understanding to try to accomplish the common and
          unlawful plan. The evidence in the case need not establish
          that all means and methods, which were agreed upon, were
          actually used or put in to operation.

                    9
          Further, it is not necessary that all of the persons charged
          as members of the alleged conspiracy were, in fact, mem-
          bers. What the evidence in the case must establish beyond
          a reasonable doubt is that the alleged conspiracy was know-
          ingly formed, and that two or more persons, including the
          accused, or the person you are then considering, were know-
          ingly members of the conspiracy as charged in the indict-
          ment.

          Further, to find the defendant guilty, you must unani-
          mously find that he was a member of the conspiracy charged
          in the indictment, and not some other separate conspiracy.
          Now, one may become a member of the conspiracy without
          full knowledge of all of the details of the conspiracy or the
          identification of all of the co-conspirators.

          On the other hand, a person who has no knowledge of a
          conspiracy, but happens to act in a way which furthers some
          object or purpose of a conspiracy, does not thereby become
          a co-conspirator. You may not infer that a defendant is
          guilty of participating in the conspiracy merely from the fact
          that he was present while an overt act was committed, and
          had knowledge that it was being committed. And you may
          not find that a defendant participated in a conspiracy merely
          from the fact that he associated with other people who were
          guilty of the wrongdoing. Presence, knowledge, and associa-
          tion are circumstances which may be considered, however,
          in connection with the other evidence.

The court's instructions to the jury were not objected to. The testi-
mony of the witnesses we have recited above, which was not nearly
all the evidence in the case, indicates beyond a reasonable doubt that
the jury was justified in finding all the defendants guilty as charged
in the indictment. Even if a conspiracy might have been found from
the evidence other than the one charged in the indictment, the evi-
dence is ample to support the conspiracy charged. And we again note
that the jury was charged that they had to find as to a defendant that
"he was a member of the conspiracy charged in the indictment, and
not some other separate conspiracy."

                    10
We are of opinion the government sustained its burden of proof
under Glasser v. United States, 

 (1942), both as to each
of the defendants and as to Red Watson separately.

B.

Wesley Watson contends that the district court erred in admitting
testimony concerning hearsay statements made by Wesley and
relayed to Dennis Gale and Andy Holcomb through Brian. His argu-
ment concerning statements testified to by Gale, however, rests on the
premise that Wesley and Brian were not coconspirators, which we
reject and which cannot be supported in the face of overwhelming
evidence that Wesley and Brian worked hand in hand in the operation
of this drug ring.

With regard to Holcomb's testimony, we need provide no relief.
Wesley also complains Holcomb was allowed to testify that Brian
told him the purpose of Wesley's trip to Atlanta was to buy mari-
juana. The district court, however, sustained Wesley's attorney's
objection and struck the statement.

C.

Don Watson contends the district court erred in refusing to allow
one Drew Stein to testify that Wendell Neal, who was available as a
witness, told him that he [Neal] was not worried about having been
arrested on drug charges because "he had fixed that up by delivering
a package." Don argues the statement shows that Neal planted the
100,000+ Valium pills found at Bill Hall's trailer and is admissible
as a statement of Neal's then existing mental or emotional condition
under Fed. R. Evid. 803(3).

The proposed testimony was hearsay and was properly excluded by
the district court.

D.

Objection is made to admitting the testimony of one Hanes. Hanes,
who had been a dope dealer with Crotts and knew about Crotts' get-

                    11
ting marijuana concealed in pottery, testified that Don Watson had
told him (Hanes) that Don knew about Hanes and Crotts. The infer-
ence the government sought to draw was that the conversation
referred to their dealing in marijuana. This conversation was stricken
by the district court but made the subject of cross-examination by
Don's attorney. At that point, the district court limited the effect of
the conversation to Don, thereby excluding any of its effect on the
other defendants. We perceive no error in its ruling.

E.

Wesley Watson claims that a civil forfeiture proceeding growing
out of the seizure from him of some $55,000 in cash is a bar to his
criminal prosecution under the Fifth Amendment's double jeopardy
provision. The government has relied on various procedural bars to
the assertion of that claim by Wesley. We need not consider them,
however, for while this appeal was pending, the Supreme Court
decided United States v. Ursery, 

 (U.S. June 24,
1996) (No. 95-345), which decided this defense was without merit,
and we so hold.

F.

Don Watson asserts the district court erred at sentencing by includ-
ing, in the drugs attributed to him, a 100 pound marijuana shipment
received by Wesley Watson. The district court attributed the full
amount to Don, finding that Don was "a member of the conspiracy
to the extent greater than just a seller at times. The events that took
place at his place, he took part, and was present for other things that
were going on in connection with the conspiracy."

Don asserts, correctly, that in this circuit a defendant is not respon-
sible for the acts of a coconspirator in jointly undertaken criminal
activity unless the acts were "within the scope of the defendant's
agreement and . . . reasonably foreseeable to the defendant." United
States v. Gilliam, 

 (4th Cir. 1983). What constitutes the
scope of the defendant's agreement is "a question of fact which will
only be overturned on appeal if it is clearly erroneous." United States
v. Vinson, 

, 742 (4th Cir. 1989), cert. denied, 

 (1990). Consistent with the decision of the district court, the evi-

                     12
dence shows that Don and his automotive shop were quite involved
with the conspirators' major drug purchases and operations. For
example, cash for the purchases was collected there, and counted or
secreted at Don's direction. Don was aware of the quantity of drugs
received, and he exercised authority to control the disposition of large
quantities of drugs without obtaining Wesley's permission. We con-
clude that the district court was not clearly erroneous in attributing the
100 pound marijuana shipment to Don.

G.

The defendants claim the district court erred in fixing their base
offense level for sentencing purposes because it based its finding "pri-
marily on the testimony of three government witnesses, Dennis Gale,
Wendell Neal and Deborah Davis."

The defendants' claim is that these three witnesses had been
impeached during the course of the trial, and the defendants conclude
their testimony was, therefore, not reliable.

The district court, however, saw the witnesses and heard them tes-
tify, it was entitled to accept this testimony.

The judgments of conviction and sentence are accordingly

AFFIRMED.*
_________________________________________________________________
*Hall argued at trial that there was no evidence to connect him with
the drug ring's handling and distribution of marijuana, only of Valium.
On appeal, he may be said to make the same claim as a fatal variance.
The district court, however, submitted the case to the jury as that of one
conspiracy under instructions which we have quoted and which were not
objected to. The verdict forms to which no objection has been brought
to our attention only provided for a general verdict as to each defendant
of guilty or not guilty and were not parsed into counts and did not men-
tion different or various crimes. No jury instruction was offered at trial
which has been brought to our attention which sought to distinguish a
marijuana from a Valium conspiracy. Under these circumstances, even
if Hall was connected to the drug ring only through Valium and not
through marijuana, we think that does not amount to a fatal variance.

                     13